Bigelow v. Ritter

• Decision Date: 10 July 1906
• Parties: BIGELOW v. RITTER, COUNTY SUP'T AND SUP'R.
• Court: Iowa Supreme Court

131 Iowa 213

108 N.W. 218

BIGELOW

v.RITTER, COUNTY SUP'T AND SUP'R.

Supreme Court of Iowa.

July 10, 1906.

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

Suit to enjoin the removal of the plaintiff's fence from the public highway. Judgment for plaintiff, from which the defendant appeals. Reversed.McElroy & Cox, for appellant.

E. J. Salmon, for appellee.

SHERWIN, J.

The plaintiff is the owner of the N. E. 1/4 of section 16 in Newton township, Jasper county, Iowa; he and a brother having purchased the same in 1868. In 1866 the board of supervisors of said county established a public highway in said township extending from the northeast corner of section 28 north along intervening section lines to the northeast corner of section 4. The road thus established passed along the east side of the plaintiff's quarter section of land. In 1869 the plaintiff and his brother built a fence along the east side of said quarter section placing it in the established highway, and it has been maintained along practically the same line ever since. In 1904 the defendant threatened to remove the fence from the highway, and this action was brought to restrain him from so doing.

Although the question does not seem to have been raised in the trial court, the appellee contends here that the highway in question was not legally established because it is not shown by the record that the board acquired jurisdiction. Since the appellee's argument was filed, however, the appellant has filed additional abstracts which show that the preliminary notice required by sections 824 and 825 of the Revision of 1860 was given by posting the same as required by said section, and that a correct plat of the road was filed as a part of the commissioners' report. We think there can be no question as to the jurisdiction of the board, and, it having acquired jurisdiction in the manner prescribed by law, every presumption thereafter is in favor of the legality of its proceedings. State of Iowa v. Berry, 12 Iowa, 58;Keyes & Crawford v. Tait, 19 Iowa, 123.

The appellee filed a motion to strike the amendments to the appellant's abstract because they were filed after his argument, and the motion was submitted with the case. Ordinarily the abstract should be complete before the adverse party is required to argue, but it often happens that an amendment is made necessary by the presentation in argument of a question not raised in the trial court, and in such case it is the rule to permit an amendment which will show the true record on the point thus made. Nothing more was covered by the amendments in this case, and the motion to strike is therefore overruled.

It is undisputed that the plaintiff has been in possession of the strip of highway inclosed by his fence ever since the fence was built in 1869, and that he has cultivated and otherwise used it during all of said time, and it is also undisputed that the rest of the highway has been traveled and used by the public during said time. He pleads adverse possession and relies thereon, and he has also, in a way, pleaded an estoppel on which he relies. It is unnecessary to devote any considerable time to the claim of adverse possession. While the record of the board is silent as to the width of the highway, it was established 66 feet wide by virtue of section 820 of the Revision, which provided that all roads thereafter established “must be sixty-six feet in width unless otherwise specially directed.” Rae v. Miller, 99 Iowa, 650, 68 N. W. 899. This statute was in force when the road was established, and when the plaintiff and his brother purchased they were charged with notice of the width thereof fixed by law. Title by adverse possession can in no event be acquired by mere possession. There must be an honest claim of right...