Bidwell v. McCuen
| Decision Date | 15 February 1918 |
| Docket Number | No. 31714.,31714. |
| Citation | 183 Iowa 633,166 N.W. 369 |
| Parties | BIDWELL ET AL. v. MCCUEN ET AL., COUNTY SUP'RS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jasper County; K. E. Willcockson, Judge.
Suit to enjoin the opening of a highway and for damages to buildings and crops occasioned by the use of explosives in blowing out trees and stumps in attempting to open said highway in front of plaintiffs' premises. Facts are stated in the opinion. Affirmed.Ross R. Mowry, of Newton, and John McLennan, of Des Moines, for appellants.
M. R. Hammer, Jr., and E. P. Malmberg, both of Newton, for appellees.
Plaintiffs are the owners of a tract of land in Jasper county, Iowa, described in their petition as the north fractional half of section 6--78--21, and the defendants are the members of the board of supervisors of said county. The controversy in this case arises over a strip of land on the north side of said tract, on which, prior to the matters complained of herein, there was a row of willow and cotton wood trees of various sizes near and parallel with the north line fence, some of which had a diameter of three feet.
Defendants claimed the disputed tract of land as a part of a highway extending east and west in front of said premises; whereas, it is the claim of plaintiffs that no highway was ever established in front of said premises and that they and their grantors have always been in the possession, and had the use, of said tract and are the absolute owners thereof. It is conceded in the evidence that the disputed strip has never been used by the public as a highway and that plaintiffs and their grantors have, since about the year 1859, been in possession thereof and have planted cherry and ornamental trees thereon; that said fractional tract has for a great many years been inclosed on the north side by a fence erected upon an irregular line.
It is the contention of defendants that a highway 66 feet in width was dedicated in 1868 a portion of the way from the west Jasper county line along the north side of said tract by Micajah Van Winkle who owned the land on both sides of the Correction Line. Assuming this to be true, the west end of said fence stands about 10 feet north of the south line of said highway, from which point it extends in a northeasterly direction to a point somewhat less than one-third of the distance across said tract and then makes a jog at right angles to the north a distance of 10 or 12 feet; thence it extends in a slightly southeasterly direction to a point about two-thirds of the distance across said tract, from which it continues in a northeasterly direction to the northeast corner of said tract which is on the center of said alleged highway, so that the width of the disputed strip is approximately from 10 to 33 feet and extends across the entire north side of said fractional half section.
The north side of said highway is, and has been for many years, fenced on a straight line which, so far as the record discloses, is conceded by the parties to be properly located. The disputed tract extends west to the line between Jasper and Polk counties. It is also claimed by defendants that a highway 66 feet in width was legally established by the board of supervisors of Jasper county from the east end of the disputed tract west to a point where same and a portion dedicated by Micajah Van Winkle meet a short distance west of plaintiffs' residence, and that same is part of a state highway established by the acts of the Third General Assembly, and that said strip 66 feet in width was, as above stated, dedicated as a highway; all, except the strip in controversy, having since been continuously used by the public for that purpose.
The evidence shows without conflict that on or about the 14th day of January, 1868, a petition, signed by numerous property owners in the vicinity thereof, asking the establishment of a highway in Polk county purporting also to have been signed by Micajah Van Winkle, was filed in the office of the county auditor of Polk county; that notice thereof was given as required by law and a highway established as prayed. Said petition is addressed to the “Honorable Board of Supervisors of Polk County,” and asks the appointment of a commission to meet a like commission from Jasper county to view, lay out, and establish a road 66 feet wide between Jasper and Polk counties running easterly between said counties on the Correction Line, to begin in Polk county at the southeast corner of section 6--78--22 and running thence along easterly said Correction Line 33 feet in width on each side thereof and between the said counties until said road shall intersect and coincide with the road passing the house of Micajah Van Winkle in Jasper county leading to Prairie City.
In addition to said petition, the defendants introduced in evidence an instrument purporting to be signed by Van Winkle, as follows:
“Know all men by these presents, that I, M. Van Winkle of Des Moines township, Jasper county and state of Iowa do hereby grant and convey the right of way for a state road as petitioned for by P. E. Dye and others through my land in all that part of said road that lies wholly in Jasper county, beginning at a point of the ‘Correction Line’ at the westerly boundary of Jasper county and running thence easterly along and on both sides of the said ‘Correction Line’ till the said road coincides with the road passing my house.
And I hereby covenant that I am lawfully seised of said premises and that I have good authority to grant the right of way through the same for the purpose afore named.
In witness whereof I have hereunto set my hand and seal this 6th day of September, A. D. 1868.”
The above instrument was never filed for record in Jasper county, but was filed in the office of the county auditor of Polk county and spread upon the records thereof as a part of the proceedings for said highway, and at the time of the trial of this case was found among the said highway papers in said office.
On the 19th day of February, 1915, the defendants caused a notice to be served upon plaintiffs to remove said fence, trees, and shrubs from said highway. The plaintiffs having failed to comply therewith, defendants employed men who entered thereon and cut a large number of trees and, by the use of dynamite, blew out stumps and trees, scattering the same, as alleged by plaintiffs, over their wheat fields and others premises, and breaking a large number of window lights in their residence, destroying said fence, and otherwise damaging their premises.
This action was brought to restrain defendants from trespassing upon said disputed tract, from destroying the trees and shrubbery growing thereon, and from removing or further injuring said fence and buildings on said premises. A temporary writ was granted by the court, which, upon final hearing, was dissolved. Plaintiffs in their petition also prayed and asked judgment for damages on account of the destruction of said trees and injury to their residence, fence, and crops. The court awarded judgment in their favor for $250 therefor.
I. It is the contention of counsel for appellee herein: (a) That by act of the Third General Assembly commissioners were appointed to locate and establish a state highway along the north side of said premises and that same was duly located and established; (b) that a change was made by the board of supervisors of Jasper county in the state highway and a 66-foot highway established by it in 1856 from the east line of plaintiffs' premises to a point a short distance west of the residence now situated thereon; (c) that in 1868 Micajah Van Winkle, who owned the land on both sides of said alleged highway, by an instrument in writing, dedicated a 66-foot highway extending from the west line of Jasper county east coinciding with the highway above referred to.
All of the above propositions are denied by counsel for appellant, whose contention is: (1) That no part of said alleged highway was ever established by dedication or by the board of supervisors of Jasper county; (2) that the highway in controversy is no part of the old state highway; (3) that, in so far as a highway exists along the north side of plaintiffs' premises, it was acquired by prescription only, and the public is confined to the use of the same as it now is; and (4) that the disputed strip has been in the continuous, uninterrupted, adverse possession of plaintiffs and their grantors since long prior to the alleged establishment of any part of said highway, and that they purchased same without notice, actual or constructive, of the claim now asserted by defendants, and that they have planted fruit and ornamental trees on said tract, and that the public is estopped from claiming same as a part of said highway.
There is considerable conflict in the evidence as to the exact location of the state highway, but all concede the establishment thereof. Without quoting therefrom or reviewing the testimony, we reach the conclusion, from a careful reading of the record, that the state highway passed immediately in front of plaintiffs' premises for at least a part of the distance. The field notes and plat of said highway were offered in evidence by plaintiffs; but we are unable, from the data furnished, to definitely locate the same with reference to the tract in dispute. There is, however, no serious controversy between the parties as to the establishment of a portion of said highway 66 feet in width from the east line of plaintiffs' premises to a point a short distance west of the residence situated thereon. The records of Jasper county offered in evidence are quite conclusive upon this point. This highway was located and established on the Correction Line without designation of the width thereof, but which, under the law...
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