Backman v. City of Oskaloosa

• Citation: 130 Iowa 600,104 N.W. 347
• Parties: BACKMAN v. CITY OF OSKALOOSA ET AL.
• Decision Date: 12 July 1905
• Court: Iowa Supreme Court

130 Iowa 600

104 N.W. 347

BACKMAN

v.CITY OF OSKALOOSA ET AL.

Supreme Court of Iowa.

July 12, 1905.

Appeal from District Court, Mahaska County; W. G. Clements, Judge.

Action to restrain defendants from opening and improving a platted street. The petition was dismissed, and plaintiff appeals. Affirmed.Carver & Wooster and D. C. Waggoner, for appellant.

Burrell & Devitt and C. C. Orvis, for appellees.

LADD, J.

Certain land was platted into lots and streets by the Western Union Fuel Company in August, 1893. Space for a street was left east and south of lot 1 (between it and lot 14), and 40 feet wide between lots 13 and 14, being along the west side of the last-mentioned lot. For more than 20 years travel had been along what was the line in the plat between lots 14 and 15 down to the right of way of the Iowa Central Railroad Company, along which it extended in a southwesterly direction to the street south of the lots. The plaintiff purchased lot 14 in July, 1901, and immediately erected a fence around it, excluding the traveled road, but including one-half of the space on the north and all of that between lots 13 and 14 dedicated by the plat for a street. In April, 1902, the plaintiff and others petitioned the board of supervisors of the county to establish a highway where the traveled road was, and the petition was granted. In the certificate attached to the plat of his survey the county surveyor remarked that “a road formerly on the west line of lot 14 is moved to the west line of lot 15,” but this statement finds no support in the record. There was some talk of vacating this, but it was never done. The plaintiff testified that the secretary of the fuel company pointed out the land staked as he had fenced as that sold to him, and that the space platted for the street was included, but the deed executed described the lot only, and did not purport to convey the space left for a street. See Brown v. Taber, 103 Iowa, 1, 72 N. W. 416. Moreover, the secretary denies having negotiated a sale of anything other than the lot. Lot 13 has been sold since on the representations of the plat showing a street between the lots. In these circumstances the finding that the company had not undertaken to dispose of the platted street, even if this could have been done without first vacating, is sustained by the evidence, and, as it has not been vacated in any way, title thereto was at no time in the plaintiff. During the same month plaintiff relinquished...