Boehler v. City of Des Moines

• Decision Date: 16 May 1900
• Parties: BOEHLER ET AL. v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

111 Iowa 417

82 N.W. 914

BOEHLER ET AL.

v.CITY OF DES MOINES.

Supreme Court of Iowa.

May 16, 1900.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Plaintiff, Louisa Boehler, began this action against the defendant to recover damages for trespasses committed on certain real estate, and to enjoin further like acts. J. S. Harber and others intervened, claiming title to the property in question, and praying that it be quieted against plaintiff and defendant. The city, in its answer, also claims title to the property, and by cross bill seeks to have the same quieted. The decree awards neither an injunction nor damages to plaintiff, nor does it quiet title in interveners, but it recites that the equities are with them and plaintiff; that plaintiff is in possession, and that the city has no right nor interest in the real estate, and its cross bill is dismissed. The city appeals. Reversed.J. Edward Mershon and W. C. Strock, for appellant.

E. T. Morris, for appellee Boehler.

C. H. Sweeney, for appellees Harber and others.

WATERMAN, J.

The only matter to determine is as to the rights of defendant under its cross bill. The real estate in dispute, as described in plaintiff's petition, is a tract of ground 148 feet north and south along the west side of East Front street in the city of Des Moines, and opposite to lots 1, 2, and 3, and to the alley adjoining said lots on the north in block E of Scott and Dean's addition to East Des Moines. In defendant's cross bill the description includes this tract, but extends it south opposite that part of block D, lying north of the south alley running east and west. The plat attached will show the tract. It lies west of Front street between the short lots shown, and mainly within or west of the dotted line. This dotted line appears on the recorded plat, and much force is claimed for it by defendant, as will be seen when we reach the testimony. The city bases its title upon a number of grounds; but two, however, are argued: First, it is claimed that this tract was dedicated to the city as a part of Front street when the addition was platted; second, that the city has had possession of it as a part of Front street for so many years that it has acquired title by prescription. John S. Dean was the original owner of this land, and made the plat in question. Louisa Boehler's interest was acquired in 1886 by quitclaim deeds from some of the heirs of Dean, then deceased, and intervener claims by representation the interest of another heir deceased. The tract remained unoccupied for many years after it was platted, which was in 1849, although the city used it for a dumping ground. In 1886 plaintiff leased to one De Witt the north 66 feet of the tract in dispute, and he went into possession. He and his assignee have since held it. This action was commenced in 1892. Plaintiff paid the general taxes on this property for the years 1889 to 1896, inclusive; but it appears the property was first placed on the tax list as omitted property at plaintiff's instance, and has since been carried along by the assessor in her name. A special tax for paving and curbing was assessed against the city of Des Moines in 1892, and has been paid by it.

We come now to a consideration of the plat. An outline sketch of the part involved is herewith given:

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It will be noted that Walnut and Vine streets are laid out as running to the river, while Court avenue stops at the east line of Front street, and, so far as appears, the west line of Front street along this disputed tract is high-water mark. If it was the intention of the owner that this should be so, then the title of plaintiff and intervener is of no validity. Some witnesses testify on plaintiff's behalf that they...