Agne v. Seitsinger

• Decision Date: 23 October 1895
• Citation: 64 N.W. 836,96 Iowa 181
• Parties: AGNE v. SEITSINGER.
• Court: Iowa Supreme Court

96 Iowa 181

64 N.W. 836

AGNE

v.SEITSINGER.

Supreme Court of Iowa.

Oct. 23, 1895.

Appeal from district court, Cedar county; J. H. Preston, Judge.

Action at law to recover damages from defendant for maliciously destroying a cattle pass claimed by plaintiff across and under a highway bridge in Cedar county, Iowa. There was a trial to a jury, and at the conclusion of plaintiff's testimony the court directed a verdict for defendant. Plaintiff appeals. Reversed.Isaac Landt and Wheeler & Moffit, for appellant.

Robert G. Cousins, for appellee.

DEEMER, J.

This is the third time this case has been before us. The opinion on the first appeal will be found in 85 Iowa, 306, 52 N. W. 228. On October 9, 1894, an opinion was filed in the second appeal, which will be found in 60 N. W. 483, affirming the judgment of the lower court. A rehearing was granted of this second appeal, and we are now to consider the second appeal again. The plaintiff is the owner of contiguous parts of sections 5 and 8, in township 80, range 3, Cedar county, Iowa, which he occupies and uses for agricultural purposes. He purchased the same of one Sem. Simmons. In the year 1858, Simmons, being then the owner of said land, executed and filed with the county judge an instrument in words and figures as follows: “To the County Judge of Cedar County, Iowa: A continuation of the Old Littrel road, running north and south through the center of sec. 5, township 80 N., range 3 west of the 5th P. M., as seen in the above plat. The undersigned, owner of the east 1/2 N. W. quarter of section 8, town 80, range 3 west, agrees to donate ground for the purpose of establishing a public highway, being a continuation of the above Littrel road, as follows: Commencing at the quarter post between sections 5 and 8, town and range as aforesaid; thence south, 18 degrees west, 16 poles, more or less, to intersect the Moscow and Marion road; said continuation to be on the express condition, viz. that said owner reserve the right to attach a fence to the bridge which must necessarily be built across Rock run before said road can be made passable. [Signed] Sem. Simmons, Owner.”

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Upon the filing of this paper the county judge made of record the following order: “County Court, Sept. Term, A. D. 1858. Sem. Simmons' Road. On this day the agreement of S. Simmons, the owner of the land through which the road runs, was filed, together with a plat of same, whereupon the said road was established, and ordered to be recorded. The court then adjourned for the session. Geo. Smith, County Judge.” Thereafter the road so dedicated was opened, and a bridge was constructed across a ravine at its junction with Rock run in such manner as to admit of fences being attached to the bridge, and with ample space for stock to pass under the bridge. The bridge so constructed was thus maintained from 1858 to 1890, and plaintiff and his grantor had fences connected with the bridge, and continuously used the passageway for a cattle pass. In the summer of 1890 the bridge was washed out by a freshet, and the defendant, who was then road supervisor, being notified by certain citizens to repair the bridge, caused the same to be replaced. Plaintiff claims that defendant, although notified to replace the bridge as theretofore maintained, willfully, maliciously, and negligently reconstructed the same so as to deprive him of the privilege of connecting his fence therewith, and in such a manner as to destroy the cattle pass thereunder. He avers that the right to a cattle pass is one of the incidents of the reservation in the grant, and is covered thereby, and that, if this be not true, he holds the same by a prescriptive right, by reason of his grantor having used and occupied the same under claim of right or color of title for more than 30 years. Defendant denies that plaintiff is entitled to a cattle pass under the bridge, and denies that he has replaced it so that plaintiff cannot attach fences thereto, or so as to destroy the passageway for cattle thereunder. He also avers that the reservation in the grant does not relate to the bridge in question, but to another bridge across Rock run, some 30 or 40 feet distant. The lower court seems to have adopted this last theory of defendant, and in accordance therewith directed a verdict for him.

1. It is true that the bridge as rebuilt was not, strictly speaking, across Rock run. Nor was the bridge, as originally built, across the main channel of the brook. It did, however, cross a deep ravine at its junction with Rock run, and some 30 or 40 feet from a county bridge over Rock run, on what is known as the “Moscow and Marion Road” as shown on the plat. The right reserved is “to attach a fence to the bridge which must necessarily be built across Rock run before said...