94 U.S. 324 (1877), Barney v. City Of Keokuk

Citation:94 U.S. 324, 24 L.Ed. 224
Party Name:BARNEY v. KEOKUK.
Case Date:April 23, 1877
Court:United States Supreme Court

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94 U.S. 324 (1877)

24 L.Ed. 224




United States Supreme Court.

April 23, 1877


ERROR to the Circuit Court of the United States for the District of Iowa.

This was an action of ejectment brought by the plaintiff against the city of Keokuk and several railroad companies and a steam-packet company, to recover the possession of certain premises occupied by them with railroad tracks, buildings, and sheds on the bank of the Mississippi River, in the city aforesaid. The plaintiff, in his petition, described the premises as follows: 'All the land lying and being in front of lots 5 and 6, in block 3, in the city of Keokuk, Lee County, Iowa, and extending from the front line of said lots to the Mississippi River the full width of said lots.' The petitioner states that he is the owner in fee-simple of the premises, subject only to the right of the public to use that part of them embraced within the limits of Water Street as a public highway, and is entitled to possession as against the defendants, that the city of Keokuk claims to be the proprietor, and the other defendants occupy as its tenants.

The city, by its answer, admitting that the plaintiff is owner of lots 5 and 6, in block 3, states, in substance, that all the land in front of them down to the Mississippi River was in 1840 dedicated to public use as a street and levee, and, as such, has been used and improved ever since under the possession and control of the city, by virtue of its charter, and has, at its expense, been extended out about two hundred and fifty feet by depositing earth and stone in the river, in order to make the wharf and levee more convenient, safe, and useful. Other defences were interposed, which it is not necessary to specify.

The other defendants claim under authority of the city.

The cause was tried by the court, and a special finding of the facts and the law was made.

From these findings, it appears that the city of Keokuk is situated upon a tract of land lying between the Mississippi and

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the Des Moines Rivers, in Lee County, Iowa, known as the 'Half-breed Sac and Fox reservation,' which, by treaty with the Sac and Fox tribes of Aug. 4, 1824, 7 Stat. 229, was granted to the half-breeds of those tribes, to be by them held in the same manner as other Indian titles are held. The fee, with power of alienation, was subsequently vested in them. Numerous parties became interested in the tract by purchase, and a town was laid out and lots sold as early as 1837; but no regular town plat, having the requisites of the town-plat law of 1839, seems to have been filed or recorded in the recorder's office of the county. One Galland, who seems to have been a part owner, made out such a plat, and filed it; but there is no proof that he had authority for his acts from the other proprietors. In 1840, suit for a partition of the tract was commenced, and regular proceedings were had, resulting, in October, 1841, in a final decree of partition, made according to the report of commissioners, and embodying a plat or map of the town of Keokuk. Said lots 5 and 6, in block 3, are exhibited on this map, and were drawn by the parties under whom the plaintiff claims title. In its findings of fact, the court sets forth portions of the decree, and, amongst other things, the following:----

'In describing each of said shares, the commissioners appointed by the court say, among other things: 'The lots upon Water Street include all the land in front of them to the Mississippi River.'

'And, after describing all the shares, they say:----

"In describing the boundary of the town-lots situated on Water Street in the towns of Keokuk and Nashville, we have made them to include all the land in front of them to the Mississippi River, by which we mean in front of them, facing the river, parallel with the streets running from Fourteenth Street to Water Street.'

'And in describing the plat of Keokuk, the commissioners' report, among other things, says:----

"Plat of Keokuk, in the county of Lee, Territory of Iowa, upon the half-breed tract, the outlines of which were designated and marked by Jenefer T. Spring in his survey as town reservation, . . . Water Street is of unequal and irregular width at the points where the dotted lines pass across the same.

"The street is of the width in feet as is represented by the figures set on said lines.' 'Water Street extends the whole front on river side of the town, or from the intersection of Orleans Street with the

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Mississippi River, down the right bank of the river, with the meanders thereof, to the intersection of Cedar Street with the Mississippi River."

The Galland map was produced on the trial, also a fragment of another map, which bears date August, 1840, found in the recorder's office. By these, as well as the map embodied in the decree, the space between the front of the lots and the river is designated as Water Street, and appears to have been, at that time, about one hundred feet wide.

As to the occupation of Water Street in front of the plaintiff's lots, and its extension on the river side, the court found:----

'The city of Keokuk has, since the year 1865, caused the space originally covered by water on the river side of Water Street, in front of said lots, to be filled in with earth and stone for a space of over two hundred feet beyond the original water-line to ordinary high-water mark, and about three hundred and fifty-two feet to low-water mark, said filling having been done by said city. That part of the space between the front of said lots and the river at ordinary high-water mark is occupied as follows:----

'1. By the freight-house or depot of the defendant, the Keokuk and Des Moines Railway Company, . . . a permanent and substantial frame building. It has been standing a good many years, . . . is used for storing freight by said railroad company, is two hundred and three feet long and twenty feet wide, and one story high, and covers the whole of the front of said lots 5 and 6, block 3.

'2. By the railroad tracks used by the defendants, the Keokuk and Des Moines Railway Company, the Mississippi Valley and Western Railway Company (now St. Louis, Keokuk, and North-western Railway Company), the Toledo, Peoria, & Warsaw Railway Company, and the Toledo, Wabash, and Western Railway Company. Altogether there are ten railroad tracks between the front of said lots and high-water mark.

'3. By the building known as the Keokuk Northern Line Packet depot, . . . a permanent and substantial building, one hundred feet long and fifty feet wide, formed of substantial timbers, and about fourteen or fifteen feet high. It was built by said packet company for its own use in carrying on its business as a common carrier by steamboats on the Mississippi River, and is used by it in connection with its transportation business for the temporary storage of freight

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carried or to be carried by said company, and also for the business offices of said company at Keokuk. Said building has five large doors through which teams are driven in delivering or receiving freight, and which doors are closed at night. The building is one and a half stories high, with office rooms on second floor, and the ground-floor is of heavy two-inch lumber laid on sills about two feet apart.'

The map shows that this building stands on the newly made ground below original high water.

The court further found:----

'That none of the defendants so occupying said ground, nor the city, has caused any condemnation, nor asked or obtained the permission of plaintiff, nor paid him any damages in compensation for the use of said ground. But they all and severally hold the same under the license or permission of the city of Keokuk only.'

As conclusions of law under the foregoing facts, the court found:----

'1. There was no completed statutory dedication of Water Street under the town-plat act of 1839 prior to the decree of partition, for the reason, among others, that all of the proprietors, i.e., the half-breed owners and their grantees, did not join in making a plat, or in selling lots according to the Galland or other plat. What was done prior to the decree was at most a common-law dedication by those who platted or recognized the plat, and it was therefore competent for the decree of partition to provide, as it did, 'that the lots on Water Street should include all the land in front of the lots to the Mississippi River.”

This leaves the fee of the land constituting Water Street in the plaintiff, subject to the rights of the public.

'2. The additional ground made by filling in Water Street outside of the original water-line partakes of the same character as the original street. The fee of the newly made ground in front of the plaintiff's lots is in the plaintiff, but it is subject to the same public uses as the original street.

'3. Under the law of Iowa, as construed by the Supreme Court of the State, railroad companies, certainly, with the assent of the municipal authorities, have the right to lay down their tracks in the streets of a city, whether they were dedicated under the statute or as at common law; that is, whether the fee is in the city or in the adjoining proprietor.

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'4. This, however, does not give the railway company, even with the assent of the municipality, the right to erect a permanent and substantial depot-building in the street.

'5. In view of the location and situation of Water Street and the presumed intention of the dedication thereof to the public, and guided by the view of the Supreme Court of the State in this regard in Haight v. The City of Keokuk, and the power of the city as to wharves, and the use of Water Street for that purpose, given to the city of Keokuk by the act of the legislature of 1853, Water Street may be used for levee and wharf purposes under municipal management and control.

'The building erected by...

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