Burroughs v. City of Cherokee

• Decision Date: 15 November 1906
• Citation: 134 Iowa 429,109 N.W. 876
• Parties: BURROUGHS v. CITY OF CHEROKEE ET AL.
• Court: Iowa Supreme Court

134 Iowa 429

109 N.W. 876

BURROUGHS

v.CITY OF CHEROKEE ET AL.

Supreme Court of Iowa.

Nov. 15, 1906.

Appeal from District Court, Cherokee County; Wm. Hutchinson, Judge.

Action to enjoin defendants from interfering with plaintiff's fences across certain alleged streets. Decree as prayed Defendants appeal. Reversed.Wm. Mulvany and A. R. Molyneux, for appellants.

Herrick & Herrick and E. H. Hubbard, for appellee.

LADD, J.

The plat of Burroughs' Magnetic Spring addition to New Cherokee was properly acknowledged and filed for record May 16, 1882, and this, under the statute then in force, was “equivalent to a deed in fee simple of such portion of the premises platted as is on such plat set apart for streets or other public use.” Section 561, Code 1873; Coe College v. City of Cedar Rapids, 120 Iowa, 544, 95 N. W. 267. At that time New Cherokee was an incorporated town, and acceptance by ordinance was not essential. Burlington, C. R. & N. R. Co. v. City of Columbus Junction, 104 Iowa, 110, 73 N. W. 501; section 527, Code 1873. Nor is this conclusion obviated by an ordinance of New Cherokee, passed May 2, 1882, in which it was declared that “extension of the original plat of said incorporated town, or additions thereto, shall be illegal and of no effect or binding force on said incorporated town unless the plat of said addition or extensions is submitted to the town council in said incorporated town of New Cherokee, Iowa, at a regular session thereof, and by said town council approved by resolution regularly passed by said town council.” Chapter 12 of title 4 of the Code of 1873 provided for the platting of additions to incorporated towns and cities, and declared precisely what was necessary as conditions precedent to the recording of plats, and it was not competent for the town of New Cherokee to annex thereto additional requirements. This was clearly in excess of its authority. A municipality cannot exercise a power unless it is expressly conferred by the Legislature or necessarily implied in order to carry out powers expressly conferred. Des Moines v. Gilchrist, 67 Iowa, 210, 25 N. W. 136;Keokuk v. Scroggs, 39 Iowa, 447;Brockman v. City of Creston, 79 Iowa, 587, 44 N. W. 822. As the entire subject of platting had been fully covered by the general statutes, without the aid of municipal councils, the passage of the ordinance was in excess of the powers which the town of New Cherokee might exercise, and was therefore void. But it does not follow, although appellants so contend, that no acceptance of the proposed dedication was necessary. There are authorities to the effect that a statutory dedication without acceptance vests title to portions of a plat set apart for public purposes in the municipality. This is on the theory that the plat, being recorded, may be relied upon by the public until the same has been canceled by an act of equal solemnity and authority, and that, as the statute has provided for a vacation of the plat, until this has been done the fee of the streets and alleys should be deemed to rest in the town or city. Baker v. St. Paul, 8 Minn. 491 (Gil 436); Brown v. Carthage, 123 Mo. 10, 30 S. W. 312;City of Jacksonville v. Jacksonville R. Co., 67 Ill. 540;Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269. It seems that under these authorities the burden may be cast upon the municipality, without its consent, to keep streets and alleys so dedicated in repair, and that liability will attach for personal injuries resulting from the neglect so to do. Denver v. Clements, 3 Colo. 472;Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658, 10 Am. St. Rep. 186, 2 L. R. A. 56. An examination of the statutes construed in these decisions, however, will indicate that they provide in effect that the recording of the plat shall operate to vest title in the city. Under our statute the filing of the plat is made equivalent to a deed in fee simple to the streets and alleys, but, like other deeds, requires acceptance, before it can be effective in conveying the title and casting the burden upon the municipality for the care and safety of the ways proposed. That this was so intended by the Legislature is settled conclusively by the statute exacting such an acceptance on the part of a city by the enactment of an ordinance, and also by the provisions for a vacationof a plat prior to the sale of any lots. Section 563, Code 1873. And such seems to have been the opinion of this court for many years. Bell v. City of Burlington, 68 Iowa, 296, 27 N. W. 245;Johnson v. City of Burlington, 95 Iowa, 197, 63 N. W. 694;Town of Cambridge v. Cook, 97 Iowa, 601, 66 N. W. 884;Uptagraff v. Smith, 106 Iowa, 385, 76 N. W. 733;Brown v. Taber, 103 Iowa, 2, 72 N. W. 416;Blennerhassett v. Forest City, 117 Iowa, 680, 91 N. W. 1044.

The recording of the plat is a tender of the conveyance of portions set apart as streets and alleys for such use to a municipality, and continues until shown to have been withdrawn. The law points out the procedure necessary to vacate the plat of record, and, until this has been done, or circumstances indicate to the contrary, the proprietor is presumed to continue his invitation of public acceptance and improvement. Ordinarily tracts which are platted are at some distance from the populous portions of the town or city and the proprietor, in offering to change his property from rural to urban, must be presumed to anticipate some delay in the acceptance and improvement of the streets and alleys separating the lots and blocks. When sparsely settled, years may elapse before the necessity will arise for grading or otherwise improving the streets, and until then the public ought not to be deprived of the right to accept them. However, delay may be for so long a time and under such circumstances as to indicate the abandonment of any intention to accept, and so it is quite generally held that acceptance must be within a reasonable time. Sarvis v. Caster, 116 Iowa, 707, 89 N. W. 84. What is a reasonable time will always depend upon the circumstances in each particular case. The proprietor, in recording the plat, proposes to the public that the ground represented as streets shall forever remain open to be used for that purpose, and by sale of lots or blocks with reference to the plat he precludes himself from making any other disposition of the streets. Ordinarily but part of the streets will be required for use for many years, depending upon the development and growth of the particular locality. As the proprietor receives ample consideration for his property in the sale of lots to others, he has no ground for complaint of delays in improving the ground dedicated to the public use. Meier v. Portland Cable R. Co. (Or.) 19 Pac. 610, 1 L. R. A. 856. In Taraldson v. Incorporated Town of Lime Springs, 92 Iowa, 187, 60 N. W. 658, and Backman v. City of Oskaloosa (Iowa) 104 N. W. 347, the acceptance was more than 10 years subsequent to the filing of the plat. In Shea v. City of Ottumwa, 67 Iowa, 39, 24 N. W. 582, the ground dedicated for the street was rough and hilly, and it was held that the city was not too late in accepting it 30 years after the dedication. In Mayor, etc., of Baltimore v. Frick (Md.) 33 Atl. 435, the court held that it is not necessary that the street be used within any limited time, in the absence of a condition to that effect, and that an acceptance 23 years after the filing of the plat was timely. The lapse of time alone has not been such as to indicate a purpose not to accept ultimately as streets the grounds set apart for that purpose in the plat filed. Does the delay therein, when considered in connection with other circumstances, so indicate? In Uptagraff v. Smith, 106 Iowa, 385, 76 N. W. 733, the proprietor had kept the land platted inclosed by fence and had cultivated the ground set apart for streets for more than 10 years, for 8 or 9 of which the town had levied and collected taxes thereon, and he was held entitled to a decree quieting title against the incorporated town of Minnewaukon. In Blennerhassett v. Incorporated Town of Forest City, 117 Iowa, 680, 91 N. W. 1044, the plaintiff with her husband had fenced an alley, set out trees and shrubbery, established a private driveway therein, dug a well, built a summer house, and otherwise made use of it as a part of the abutting lots, since prior to 1880. During that year there was an attempt, though irregular, on the part of the town, to vacate the plat. Nineteen years afterwards the city demanded that the obstructions in the alley be removed, and the court held, in an action to enjoin interference with plaintiff's possession, that the city was estopped from claiming the ground as a public alley. See Corey v. City of Ft. Dodge, 118 Iowa, 742, 748, 92 N. W. 704.

The subject of estoppel of the city or town to claim a street or alley for public use against one who has occupied it exclusively for private purposes was fully considered in Weber v. Iowa City, 119 Iowa, 633, 93 N. W. 637, and the conclusion reached that where there has been a nonuser of a street or an omission to accept ground dedicated for a street during a period of more than 10 years, throughout which the original proprietor or his grantees have been in actual, exclusive possession under claim of right, without interference or protest on the part of the officers or the public, the municipality is estopped from asserting that the ground constituted a street. After referring to the doctrine announced in City of Waterloo v. Union Mills Co., 72 Iowa, 437, 34 N. W. 197, that the statute of limitations does not run against a municipality in such a case, it was there said: “This does not mean that a city may abandon all use of and control over a street, and stand idly by while it is closed to the public under a claim of private right, and subjected to use and occupancy as private property, and then at any time in the indefinite or remote future be heard to demand its reopening. ...