Barnes v. Robertson

• Decision Date: 22 October 1912
• Citation: 137 N.W. 1018,156 Iowa 730
• Parties: B. BARNES v. W. M. ROBERTSON, Road Supervisor, J. H. RAMGE and Other Trustees, and ANTHONY L. MAYER, Defendants and Appellees, and MARK CHURCHILL and LENA CHURCHILL, Appellants
• Court: Iowa Supreme Court

137 N.W. 1018

156 Iowa 730

B. BARNES v. W. M. ROBERTSON, Road Supervisor, J. H. RAMGE and Other Trustees, and ANTHONY L. MAYER, Defendants and Appellees, and MARK CHURCHILL and LENA CHURCHILL, Appellants

Supreme Court of Iowa, Des Moines

October 22, 1912

Appeal from Washington District Court.--HON. K. E. WILCOCKSON Judge.

Affirmed.

Eicher & Livingston, for appellants.

Edmund D. Morrison, for appellee.

OPINION

THE facts are stated in the opinion.--Affirmed.

SHERWIN J.

This is an action of mandamus, praying that the defendant road supervisors be required to remove obstructions consisting of fences and gates, maintained by defendants Churchill & Mayer in a highway where it crosses the S. 1/2 of section 3 township 74, range 9. After trial on the merits, there was a decree for the plaintiff, and the defendants Churchill alone appeal.

The appellants are the owners of the E. 1/2 of the S. E. 1/4 and the S. E. 1/4 of the N. E. 1/4 of section 3, and the defendant Mayer is the owner of the S.W. 1/4 of the S. E. 1/4 of the same section. The plaintiff is the owner of the N. 1/2 of the S.W. 1/4 of section 2, township 74, range 9, and his house, where he lives, is on the west forty of his eighty. The section of road in controversy crosses the S. 1/2 of the S. E. 1/4 of section 3 east and west, and the obstructions that are complained of are fences and gates that are located as follows: At the east and west lines of Churchill's south forty, and a little west of the west line of the Mayer forty. The appellants became the owners of their land by inheritance from their father, Joseph Churchill, two or three years before this action was tried, and their father became the owner of the south forty in 1878. Some time before 1858 a road had been established from a point south of the southwest corner of section 3, and running north of the section line between sections 9 and 10 and 3 and 4 to a point several rods north of the south line of sections 3 and 4, and thence nearly east across the S.W. 1/4 of section 3, where it turned northeast and continued northeast across the N.W. 1/4 of the S. E. 1/4 and the S. E. 1/4 of the N. E. 1/4 of section 3 to the northeast corner of appellants' north forty. In 1858 this road was resurveyed by one Coryell; and there is no question made but that it was an established county road. In 1860 one S. Farley and others petitioned for a change in this road, "commencing where said road crosses the section line between sections 9 and 10, in township 74, range 9 W.; thence north on said line to the foot of the bluff, and thence east until it strikes the section line between sections 2 and 3; thence north on said line to a point where said road crosses said section line." The statutory requirements relative to the change of roads were strictly followed, and the commissioner appointed for the purpose filed his report plat and field notes in May, 1860. In July of the same year, the county court established the change as shown by the plat and field notes, which were ordered entered on the road records of Washington county. It does not appear, however, that the plat and field notes were ever, in fact, entered on the road records; but the record in this case discloses that they are now lost, and are not in the office of the county auditor.

After this change of the road was made, the road running in a northeasterly direction across section 3 was abandoned, and the public used the new road, and has continued to use it for fifty years. It has been worked and improved by the public authorities, and has, at all times, been recognized by every one, all of the parties to this litigation included, as a regularly established highway. The road north and south of the section line between sections 2 and 3 extends south only to a point where the road in controversy turns to the west, and the controversy in this case relates only to that part of the road that crosses the S. 1/2 of the S. E. 1/4 of section 3; and, indeed, since Mayer has not appealed, the controversy is really confined to that part of the road crossing the southeast forty of the section. The record shows that the traveled road across this eighty is now substantially where it has been ever since its location in 1860. For more than twenty-five years, it has been fenced on the north side thereof across the Churchill land; and for that length of...