277 N.W. 744 (Iowa 1938), 43964, Davelaar v. Marion County

Docket Nº:43964.
Citation:277 N.W. 744, 224 Iowa 669
Opinion Judge:HAMILTON, Justice.
Party Name:DAVELAAR v. MARION COUNTY et al.
Attorney:Vander Ploeg & Heer, of Knoxville, for appellant. Leon N. Miller and H. E. De Reus, both of Knoxville, for appellees.
Judge Panel:STIGER, C. J., and all the Justices concur.
Case Date:February 15, 1938
Court:Supreme Court of Iowa

Page 744

277 N.W. 744 (Iowa 1938)

224 Iowa 669

DAVELAAR

v.

MARION COUNTY et al.

No. 43964.

Supreme Court of Iowa.

February 15, 1938

Appeal from District Court, Marion County; Norman R. Hays, Judge.

This is an action for an injunction to restrain the defendants, Marion County Supervisors, from removing plaintiff's fence along the highway, claimed to be an obstruction to the highway. The court denied the injunction, dismissed plaintiff's petition, and taxed the costs to plaintiff. Plaintiff has appealed.

Affirmed.

Superseding opinion, 274 N.W. 305.

Page 745

Vander Ploeg & Heer, of Knoxville, for appellant.

Leon N. Miller and H. E. De Reus, both of Knoxville, for appellees.

HAMILTON, Justice.

This case was originally submitted at the June, 1937, period of the May term. Petition for rehearing was granted and the case reargued and again submitted. While we reach the same conclusion, it is deemed advisable, because of a misstatement of some of the facts, that the former opinion which appears in 274 N.W. 305 should be, and the same is, withdrawn. The plaintiff in this action is the owner of the east half of the southeast quarter of section 15, township 77 north, range 19 west of the 5th P. M. in Marion county, Iowa. For more than fifty years there has existed along the south and east boundary line of the plaintiff's land, a public highway approximately 40 feet in width. The fences along this highway have been in their present location during all of said time. Marion County, through its Board of Supervisors, acting on the theory that this road when it was established was a 66-foot road, on the 10th day of September, 1936, caused to be personally served on the plaintiff, under the provisions of chapter 248 of the 1935 Code of Iowa, section 4834 et seq., notice to remove obstructions, to wit, his fence, back on the 66-foot line.

Upon being served with said notice, plaintiff instituted this injunction suit alleging that the defendants are threatening to enter upon his land and to remove the fence between his premises and the highway, and praying that they be restrained and enjoined from so doing. Answering this petition the defendants alleged that on or about the 9th of January, 1868, a public highway 66 feet or 4 rods wide was located and established on the south and east side of plaintiff's said land, the center line of which was and is described as commencing 50 links (two rods or 33 feet) north of the quarter section corner of the south line (the southwest corner of the southeast quarter) of section 15, township 77 north, range 19 west of the 5th P. M., thence east one-half mile less two rods, thence north three-fourths of a mile; that said highway has been continuously used by the public for more than sixty-five years, and that upon said described highway the plaintiff has erected or maintained certain obstructions and fences; that notice under chapter 248 of the Code was served upon the plaintiff to remove said obstructions, and that plaintiff has failed and neglected and refuses to remove the same; and that under the provisions of said chapter of the Code, and especially sections 4837 and 4839 thereof, the defendants expect to remove said fence and obstructions or cause the same to be removed; wherefore, they pray that the plaintiff's petition be dismissed, and that it be judicially determined by the court that a public highway has been established and now exists on the east four rods of plaintiff's said land described above.

Replying to this answer the plaintiff alleges and states: " That he refuses to remove the fence along the east side of the premises owned by him and denies that the same is located upon the public highway and states that said fence is in fact located upon the line between his premises and the public highway along the east side thereof as

Page 746

established and dedicated to the public." There was a trial to the court, and at the conclusion of the evidence on the 21st day of December, 1936, the case was taken under advisement. Later, at the same term, to wit, the 28th day of December, 1936, the court filed a written ruling with findings as to the facts and the law, and upon said findings based his judgment dismissing plaintiff's petition and rendering judgment in accordance with said written opinion.

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