Bradford v. Fultz
| Decision Date | 15 December 1914 |
| Docket Number | No. 29643.,29643. |
| Citation | 167 Iowa 686,149 N.W. 925 |
| Parties | BRADFORD v. FULTZ. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Buena Vista County; N. J. Lee, Judge.
Action to enjoin the obstruction of a road and to restrain the defendant from interfering with the use of the same by the plaintiff. Plaintiff claims a dedication of the road to the public, or that the public had acquired a prescriptive right to the use of the road. Decree for the plaintiff. Defendant appeals. Reversed and remanded.Faville & Whitney, of Storm Lake, for appellant.
James Deland, of Storm Lake, for appellee.
That the situation of the locus in quo and the relative position and relationship of the parties to the controversy may be understood, it is necessary that we first state a few facts concerning which the evidence affords no controversy. We herewith set out a plat showing the road and the land adjoining the same. In the discussion of the facts in this case, we will make reference to this plat.
In what would ordinarily have been described as the southwest quarter of section 9 there is but 80 acres. It borders on a lake which has a meandered shore line. It was therefore described in the original government survey, as shown on the plat, as lots 1 and 2. The adjacent quarter section on the west is the southeast quarter of section 8. The north line of this quarter section also bordered on the lake, and is described as lot 4 on the plat.
The defendant, Fultz, originally owned the land in that part of section 8 lying west of the line AB, extended north to the shore line shown in the plat. The land lying east of the AB line, extending north to the lake, originally belonged to a man by the name of Henry Fisher, who sold it to the Casino Company. Subsequently the Casino Amusement Company platted all the portion of the land which is shown as platted upon the plat herein set out. The road shown on the plat, from the point A to B and from B to C, was not included in the land platted by the Casino Company, and part of this is the road in dispute. For convenience, it is indicated on the plat as the Casino Beach road. The drive shown upon the plat in the platted portion was established by the Casino Company at the time of the platting of the same, and is not involved. Henry Fisher, the original owner of all the land lying east of the AB line, occupied and used the same as a farm for many years. His house was located north and east of the point C, and near the east end of block 3. The land lying south of both of the above tracts belonged to one Haines. There is a highway running north and south along the west side of defendant's farm, not shown in the plat. This highway leads north, around the west end of the lake to the city of Storm Lake, which is situated on the north shore of the lake. The Casino grounds are located on the south shore of the lake. When Fisher first lived upon and occupied this land, his only means of going to and from his farm was to go west from the corner of his land at point A across the farm then owned by the defendant, or that owned by Haines. However, in November, 1882, the board of supervisors established a 40-foot road known as the Fisher road, extending from point A on the plat directly west to the highway running north and south on the west side of defendant's farm. This Fisher road touched Fisher's farm only at the point A, and was the only way of getting to and from his farm buildings. Therefore Fisher made a lane leading from his buildings in a diagonal line across his land to point B, and then passed straight south to point A, where he reached this 40-foot public road established by the board of supervisors. This lane was wholly on Fisher's land. It was 20 feet in width, and had a row of trees on each side of it from point C diagonally to point B, and thence south to point A. The buildings were north and east of what is shown on the plat as point C. It seems the road passed through a grove near point C to the buildings, which were somewhere near block 3. The portion involved in this suit, and claimed to be a highway, is from A to B and from B to D and 20 feet wide. The plaintiff claims that this highway was established as a public highway, and used as such for many years. Whether the plaintiff rests her claim upon dedication or prescription does not definitely appear from her pleading.
The petition in this suit was filed on August 26, 1912, and the plaintiff therein claims that for more than 25 years last past there has been established, existing, and maintained a public highway at the point hereinbefore indicated; that the highway above mentioned leads to, and connects with, the streets and alleys of the platted ground; that for many years after the platting of said ground and the selling of many lots, and after many purchasers and owners of lots had built summer residences upon the same, the road or highway in dispute was the only available way of reaching said lots with teams, vehicles, or other methods of conveyance, and is now the only practical, safe, or available, or convenient way of getting to or from the platted ground. The plaintiff owns and has built summer cottages upon lots 4 in block 2 and lot 4 in block 3, on the platted portion shown in the plat hereinbefore set out.
Plaintiff claims that the defendant has knowingly, willfully, and maliciously obstructed said highway, and closed the same against use by the plaintiff and other persons, and has forbidden the plaintiff and members of her family to drive upon and use said highway; that defendant has built a fence across said highway at the point A, and has placed other obstructions upon said highway, and is now maintaining such fence and other obstructions, which effectually close the highway from public use, and the plaintiff prays that the defendant be enjoined from maintaining such obstructions, and restrained from interfering with the plaintiff in the use of said road.
The defendant, answering plaintiff's claim, says that he is the owner of the southeast quarter of section 8 and the land in section 9 immediately adjoining it on the east, and that this land constitutes one farm, and is cultivated and operated as one tract; that the whole farm is inclosed; that the land described by plaintiff as a public highway extends across defendant's farm and through a portion of the same that is now in crop, and says that the same has been continuously fenced, and the public entirely excluded from any use of any portion of the land as a highway, for more than ten years last past. The defendant further says that, if the plaintiff or the public used any portion of said land as a highway, the use was solely permissive on the part of defendant's grantors, and was a mere license to use the same, which was revocable, and which was, in fact, revoked; that any use by the public or the plaintiff was not of a definite or fixed route across the land, but was of an uncertain, indefinite, and roving line, and that the public never acquired any right whatever, by permission or otherwise, to any certain, fixed, or definite highway over any portion of said land; that whatever right the plaintiff or the public acquired, was entirely abandoned for more than ten years prior to the commencement of this action, and that for more than ten years defendant has been in the exclusive occupancy of the portion now claimed to have been a highway; that plaintiff has not suffered any special damage or injury apart from the general public by reasonof any of the things alleged in the plaintiff's petition, and the plaintiff has no right to maintain this action. The defendant further says that the alleged highway has never been recognized as such by any officer of the county or township in which the land is situated; that the same has never been worked by any officer of said township, nor has such officer ever assumed the right to work the same; that no officer ever attempted to interfere with the defendant's use of the premises in controversy, although said officers had full notice and knowledge that the defendant claimed said premises as his own, and that the public was excluded therefrom; that the plaintiff purchased her rights after the alleged highway had been closed, and the public excluded therefrom, and that whatever rights she acquired were with full notice and knowledge that the defendant claimed the right to exclude the public from the use of said alleged highway; that the plaintiff and the public now, and at the time of the commencement of this action, had a road equally convenient, passable, and accessible to the property of the plaintiff and to the Casino grounds referred to in plaintiff's petition; and that the highway now complained of is in no way a highway of necessity.
Upon the trial of the case, the parties made the following stipulations:
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