Bradley v. Appanoose Cnty.

• Decision Date: 04 October 1898
• Parties: BRADLEY v. APPANOOSE COUNTY ET AL.
• Court: Iowa Supreme Court

106 Iowa 105

76 N.W. 519

BRADLEY

v.APPANOOSE COUNTY ET AL.

Supreme Court of Iowa.

Oct. 4, 1898.

Appeal from district court, Appanoose county; Robert Sloan, Judge.

Suit in equity to enjoin defendants from opening up a road through land belonging to the decedent. Defense, a general denial, and a plea of estoppel. Decree dismissing the petition, and plaintiffs appeal. Affirmed.C. F. Howell, for appellants.

Baker & Moore and I. M. Wilson, for appellee.

DEEMER, C. J.

William Bradley commenced this suit to enjoin defendants from opening up and improving a highway running through his land, which was duly established by act of the legislature in the year 1847. After the suit was commenced, Bradley died, and his executors were substituted as parties plaintiff. The appeal is from the order dismissing plaintiffs' petition, and the two propositions relied upon for a reversal are: First, that the highway, while duly established, has been abandoned; and, second, that appellants have gained title thereto by adverse possession.

As the highway was duly established, the burden of showing adverse possession or abandonment is upon the plaintiffs. In what follows it must not be understood that we are announcing the doctrine that 10 years' adverse user will of itself defeat a regularly established public road, for we have distinctly held in many cases that as a general rule mere nonuser will not operate to defeat public rights. In other cases we have said, however, that where there has been nonuser, and private rights have been acquired by long-continued adverse possession and consequent transfer of the lands, the public will be estopped from asserting the right to open the highway. The road in question has not been used to any great extent since it was established by the legislature. For a considerable period of time, when the country was new, and the lands unfenced, the public traveled along or near the established road, departing from the lines of the highway, and passing over the ground which was the more easily traveled by reason of its contour; but no work was done upon it except to build one bridge, and partially erect another. Finally, the travel seemed to concentrate upon a line running north and west from the highway in question, to a ford crossing a creek which intersects the highway. A bridge was afterwards built over the creek, at or near the ford; and the public crossed this bridge, and, diverting their course to the southwest, came again...