Davelaar v. Marion County
| Decision Date | 15 June 1937 |
| Docket Number | 43964. |
| Citation | 274 N.W. 305 |
| Parties | DAVELAAR v. MARION COUNTY et al.[a1] |
| Court | Iowa Supreme Court |
Appeal from District Court, Marion County; Norman R. Hays, Judge.
This is an action for writ of injunction to restrain defendants from entering upon premises of plaintiff and from removing any fences along a certain highway. The court denied the injunction, and taxed costs to plaintiff. Plaintiff appeals to this court.
Affirmed.
Vander Ploeg & Heer, of Knoxville, for appellant.
Leon N. Miller and H. E. DeReus, both of Knoxville, for appellees.
The controversy is over the location and establishment of a road in Marion county, Iowa, which the plaintiff-appellee herein claims was established as a highway in 1868.
The plaintiff is Gerrit Davelaar, and the defendants are Marion county, Iowa, and the members of the board of supervisors of that county.
The highway in question is along the east half of the southeast quarter of section 15, township 77, north range 19, west of the 5th P.M. It is the claim of the plaintiff that for more than 50 years last past a public highway has been in use along the east side of the real estate described; that the fences on the east and west sides of said public highway have been in their present location for more than 50 years last past, and that the defendants are threatening to enter upon the land of the plaintiff and remove the fences between his premises and the highway as used by the public, for the purpose of widening and working said highway, and for other purposes, and plaintiff prayed for an injunction restraining the defendants from so doing.
The answer of the defendant admitted the corporate character of Marion county, the official position of the other defendants and that the plaintiff owned the real estate described in his petition, being the east half of the southeast quarter of section 15, township 77, north range 19, west of the 5th P.M.; but alleged that on or about the 19th of January, 1868 a public highway 66 feet, or 4 rods, wide was located and established on the south side and the east side of the southeast quarter of said section 15, and that the center line of said public highway is described as commencing 50 links (2 rods) north of the quarter section corner on the south line of section 15, thence east a half mile, less 2 rods, thence north three-fourths of a mile, and that the highway has been continuously used by the public for more than 65 years; that the plaintiff has erected and maintained certain obstructions and fences upon said highway; and alleged the giving of notice to the plaintiff to remove the obstructions on or before November 10, 1936, and the plaintiff has failed to do so, and has refused to remove said fences. That under chapter 248 of the Code, sections 4837 and 4839 thereof, the defendants expect to remove the said fences and obstructions, or cause same to be removed.
In his reply the plaintiff admitted the corporate character of Marion county and the official position of the other defendants; and that Davelaar was the owner of the real estate described; that the defendants expected to remove the fences and obstructions; and generally put in issue the other allegations of defendants.
In the record of the case it appears by the testimony of one Paardekooper, county auditor of Marion county, that he had charge of the road records, and he said:
It appears further from the testimony of the county auditor that the record shows this:
And it further appears: The witness also identified Exhibit 3, being a notice to remove obstructions and fences served upon the plaintiff, and offered in evidence.
It was stipulated and conceded in the record that on the 4th day of January, 1868, Samuel A. Baldwin was the owner of the east half of the southeast quarter of section 15-77-19 and that the plaintiff in this action derives his title through a chain of conveyances from Samuel A. Baldwin; that the defendants did not have any liens or conveyances under their control with reference to the southeast quarter of section 15, between the years 1860 to 1875.
It will be observed that the petition of the plaintiff alleges he is the owner of the east half of section 15, and that for more than 50 years there has been a public highway along the east side of the real estate belonging to him; that the fences on the east and west sides of the road, or public highway, have been in their present location for more than 50 years last past.
The first question then that naturally arises, is: Has it been sufficiently shown that a road was established by the proceedings in 1868, in that locality where the parties claim the road in controversy exists?
If there is no record of the road, perhaps there is a road there now through reason of being thrown open to the public for a period of more than 50 years, but that would extend only to the width of the road as thrown open during such time, and probably would be held to be established by prescription.
It was shown that the width of the road was not 66 feet, 4 rods, but narrower; that it was only 40 feet wide, that is, from fence to fence; that the fence on each side was in a straight line. So the public did not by prescription acquire a highway or road of more than 40 feet in width, if the rights of the public are to be so gathered.
It will be observed also, from the testimony of the county auditor, and the road records produced by him, that in the file the description of the road was " commencing 50 links north of the quarter section corner on the south line of Section 15, thence east a half mile, less two rods, thence north three-fourths of a mile." The word " links" is a term used by the surveyors; 25 links equal one rod, and 1 chain equals 4 rods, and 10 chains equal 1 furlong, which is one-eighth of a mile, so that 80 chains would make a mile.
The highway in issue here is the north and south road passing along the east side of section 15, and running north three-quarters of a mile along this section. The road as it has existed and has been in use was only 40 feet wide, instead of being 4 rods or 66 feet wide, as was then required by the statutes for a state or county road, and as it was established by the action of the authorities in 1868.
It requires no stretch of the imagination to view the circumstances as they existed when the fences first went in along this road, some time shortly after 1868. Country roads then were not used to their full width as now; paving and the automobile had not come. There is no question that there was a road along the east line of section 15, running north and south. It requires no stretch of the imagination, and no profound knowledge of human nature, to arrive at the conclusion that these two farmers who built their fences along the road as laid out, leaving a roadway 40 feet in width, that each saw to it the one took no more land from the road than the other. So we arrive at the conclusion, knowing human nature and the tenacity with which adjoining neighbors see to it each keeps on his own side of a dividing line, that the center line of the road ran down the east section line of the road involved. Therefore, we arrive at the conclusion that when these fences originally went in after the establishment of the road, that one-half of the road was on one side and the other one-half on the other side of the center line that was properly located by the surveyor who surveyed the land and found indications there of that center line. The records show that the original government markings of the corners had disappeared, because the original government markings consisted merely, as the record shows, of a little pit with earth thrown up, with possibly a stick driven in. And these markings, in the course of time, would disappear, but in 1868 they were, perhaps, more easily located than today. Hence there can be no question about the center line of this road as originally laid out being the center line of the 40-foot road, and as this was all...
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