Bowersox v. Bd. of Sup'rs of Johnson Cnty.
| Decision Date | 17 May 1918 |
| Docket Number | No. 31610.,31610. |
| Citation | 167 N.W. 582,183 Iowa 645 |
| Parties | BOWERSOX v. BOARD OF SUP'RS OF JOHNSON COUNTY ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Johnson County; R. P. Howell, Judge.
Proceeding in certiorari to test the validity of an order made by the Board of Supervisors. The writ of certiorari was not sustained, and the plaintiff appeals. The material facts are stated in the petition. Reversed and remanded.Milton Remley, of Iowa City, for appellant.
O. A. Byington and E. B. Wilson, both of Iowa City, for appellees.
In the year 1856 one Jacob Shuey, owning a tract of land in Johnson county, platted the same into blocks, lots, streets, and alleys, and gave to the place the name of Shueyville. The plat was duly recorded. How many of the lots were sold and conveyed to purchasers does not appear. It is apparent, however, that like many other ambitious townplat schemes of that day the hope of building and developing a city of large proportions did not materialize, and it remains still a small unincorporated village. A copy of the plat put in evidence indicates what purports to be improvements of some kind on perhaps 20 or 30 different lots. Extending north and south through the plat, or a portion thereof, are marked three streets, named Main, Mill, and Oak, reading the names in their order from east to west. The east and west streets, intersecting the first three above mentioned, are Jefferson, Deen, West, and Water, reading the names in their order from south to north. The plaintiff is, and for some time has been, the owner of 5 lots lying immediately south of West street and west of Mill street. He also owns 2 1/2 lots immediately east of Mill street and directly opposite the 5 lots first mentioned.
In April, 1915, one Kopecky, a resident of the neighborhood, presented a petition to the board of supervisors of Johnson county, asking the vacation of that part of Mill street between West street and Deen street, and giving as reason for such order that such street is “not used, or is very seldom used, by the public for traveling purposes.” On this application being made, notice was issued and served, and the matter came on for hearing at a later date. The plaintiff, John Novotny (since deceased), appeared thereto, and opposed the order petitioned for, and presented a remonstrance against such action, signed by several persons. The objections were overruled, and an order entered as prayed, vacating Mill street at the point in controversy. Thereafter this proceeding in certiorari was instituted in the district court to annul the order of vacation, on the ground that the board of supervisors had no authority or jurisdiction in the premises. On hearing the evidence and examining the record, the court ruled that the supervisors were vested with authority to vacate the street, and dismissed the writ. The plaintiff appeals.
[1] So far as counsel attempt to discuss the necessity or advisability of vacating the street, or whether the same is sought or demanded as a matter of public interest, the argument is beside the one controlling question in the case. If the board of supervisors had any power or discretion to order the vacation, its action cannot be reviewed upon certiorari, and if it had no such power or discretion, then its order to that effect is void. We therefore come directly to the real inquiry: Is power or authority vested in the board to vacate the street or any other part of the plat? If such exists, it must have been conferred by statute. This the appellee concedes, but says that such authority is found in Code, §§ 1482 and 1507, found in the general chapter on the subject of Roads. They read as follows:
Section 1482: “The board of supervisors has the general supervision of the roads in the county, with power to establish, vacate and change them as herein provided.”
Section 1507: “All public streets of villages are a part of the road; and all road supervisors or persons having charge of the same, in the respective districts or villages, shall work the same as provided by law.”
For the purpose of having before us all the statutes which may be thought to bear upon the constructions to be placed upon the cited sections, we also cite Code, § 917, which provides that the due execution and record of a town plat “shall be equivalent to a deed in fee simple of such portion of the premises platted as is set apart for streets or other public use.”
[2] These statutes have had frequent consideration by this court, and it is now well settled that, while the making and recording of the plat constitute a deed of dedication to the public of the designated streets, such platting or dedication does not have the effect to make them public streets or highways until the public has in some manner indicated its acceptance thereof. Until such acceptance the spaces left between the blocks and marked as streets are ways in which the purchasers of lots acquire an easement of passage for the convenience of and access to their respective premises, but they are not public roads or highways. Until there has been such an acceptance, the plat or deed of dedication remains, so far as the general public is concerned, in the nature of a mere tender or offer to dedicate. Chrisman v. Bridge Co., 125 Iowa, 133, 100 N. W. 63;Cambridge v. Cook, 97 Iowa, 599, 66 N. W. 884;Bell v. Burlington, 68 Iowa, 296, 27 N. W. 245;Uptagraff v. Smith, 106 Iowa, 385, 76 N. W. 733;Burroughs v. Cherokee, 134 Iowa, 429, 109 N. W. 876. Such tender may be withdrawn, and the offered street may be vacated, by the dedicator or proprietor, at any time before the dedication had been made effective by acceptance, in so far as it does not prejudice the rights or privileges...
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