Anderson v. Lee
| Decision Date | 06 April 1921 |
| Docket Number | 33054 |
| Citation | 182 N.W. 380,191 Iowa 248 |
| Parties | FREDERICK ANDERSON, Appellant, v. K. A. LEE et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Winneshiek District Court.--W. J. SPRINGER, Judge.
ACTION in equity to enjoin the condemnation of an easement or right of way from land owned by the defendant to a public road. There was a decree denying the relief asked, and plaintiff appeals. The facts are sufficiently stated in the opinion.
Affirmed.
William S. Hart, for appellant.
C. N Houck, for appellees.
In the year 1892, one Ole O. Moe was the owner of the northwest quarter of the southeast quarter of Section 33, Township 97, Range 7 west of the 5th P. M. In addition to this tract, Moe also owned the south half of the northwest quarter of said section. The two described tracts, it will be seen, have a common corner at the center of the section. In the year mentioned, Moe sold and conveyed the first-described 40 acre tract to the defendant Lee, who is still the owner and occupant thereof. At that time, there was no public road or highway affording ingress to or egress from said 40 acres, but the same deed conveyed to said defendant a strip of land 10 feet in width, extending from the common corner at the center of the section a distance of 80 rods north, along the east side of the land retained by Moe.
Soon after these conveyances to Lee, Moe disposed of the remainder of his land in that section, and the title to the south half of the northwest quarter is now held by one Monson. About the same period, the plaintiff, Anderson, acquired the ownership of the north half of the southwest quarter of said Section 33, lying immediately south of the Monson tract. Except as the situation is affected by the ownership of the 10-foot strip, Lee has no exit from his farm to a highway, other than such as he may have by the consent or sufferance of others by whose farms he is surrounded. For alleged reasons hereinafter mentioned, he has never utilized the 10-foot strip as a road, and the same has remained inclosed in common with the land of Monson, and Lee has usually found an outlet by following a path or way through several gates in a northwesterly course across the Monson land to a public road on the west side of the section. More recently, Monson withdrew his consent to such use of this way, and thereupon, appellee, invoking the provisions of Code Sections 2028 and 2029, began proceedings to condemn a right of way. Briefly stated, the statute referred to provides that the owner of land not having a public or private way thereto, and not being able to obtain one by agreement with the owner of the land necessary to be taken for that purpose, may make application to the sheriff of the county for the appointment of a sheriff's jury of six disinterested freeholders, who shall assess the damage which such landowner will sustain by such condemnation, and report such finding to the sheriff, and, if the applicant for such way shall, before entering upon such real estate for the purpose of constructing such way, pay to the sheriff for the use of the owner the damages so assessed, the road may be at once constructed and maintained.
The road which Lee sought to condemn is a strip 33 feet in width, across the north side of the Anderson land and immediately south of the Monson land, and extends from the northwest corner of the Lee farm directly west to the highway on the west side of the section. Acting upon Lee's application, the sheriff did summon a jury, which, after written notice to the plaintiff herein, viewed the premises and assessed the damages he would sustain by reason of the condemnation at $ 210, which sum appellee paid to the sheriff for plaintiff's use. No appeal appears to have been taken from this assessment. Thereafter, the plaintiff instituted this action in equity, alleging that the condemnation proceedings were had without authority or jurisdiction to condemn or establish the said road, and asking that the same be declared void and that the appellee be perpetually enjoined from taking possession of or entering upon said land. The defendant relies upon the regularity and validity of the condemnation. On trial of the issues joined, the court found for the defendant, dismissed the plaintiff's petition, and dissolved the temporary injunction which had been granted pending the litigation.
I. The first, and indeed principal, ground on which appellant asks a reversal of the decree below is based upon the admitted fact that appellee, in purchasing his farm from Moe, also purchased the strip 10 feet wide from the northwest corner of the farm north to the angle of a highway extending north and east therefrom; and that the acquirement of this strip...
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