Christopherson v. Incorporated Town of Forest City
| Decision Date | 16 December 1916 |
| Docket Number | 31156 |
| Citation | 160 N.W. 691,178 Iowa 893 |
| Parties | BERTHA CHRISTOPHERSON, Appellant, v. INCORPORATED TOWN OF FOREST CITY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Winnebago District Court.--J. J. CLARK, Judge.
THIS is a controversy over the boundary lines of plaintiff's property in the town of Forest City. The defendant claims that plaintiff's fences, trees, etc., are out in the streets which are on three sides of her property, and that a public alley to the south thereof has been completely enclosed by her; and, as defendant was threatening to open said alley and to remove her fences, she brought this action to quiet her title in all the property claimed by her, and to enjoin defendant from opening the alley, or from in any way interfering with her possession of the property, as claimed by her. Upon a hearing to the court, plaintiff's north and west lines, as claimed by her, were established, but her east line was removed a few feet to the westward, and the alley to the south was ordered opened. Both parties appeal but, as plaintiff alone perfected her appeal, and defendant is not now seriously insisting upon more relief than was granted it on the north and west sides of plaintiff's property, we shall consider nothing but plaintiff's appeal.--Modified and Remanded.
Modified and Remanded.
B. J Thompson and Alan Loth, for appellant.
H. A Brown, for appellee.
The ground upon which the original town of Forest City is located was platted in September of the year 1856. By the terms of dedication, the lots in question were 132 feet long by 66 feet in width, the streets were 66 feet and the alleys 33 feet in width, and the "relative situation of lots, streets and alleys shown by plat, corners designated as the law directs." On this plat is shown what is known as Block 60, bounded on the east by Eighth Street, on the north by I Street, and on the south by G Street. There was a vacant space left on the plat to the west of the property in question, which was not marked in any way. To the westward was what is known as Schoolhouse Square. The block was divided into lots, numbered 1, 4, 5 and 8, and between Lots 4 and 5 was an unnamed strip, approximately 33 feet wide, which is now claimed by defendant as an alley. This alley, if it was one, did not run through the schoolhouse block; but there was a similar strip in the block immediately to the east, corresponding with the one through Block 60.
The situation is shown upon the plat hereto attached.
[SEE PLAT IN ORIGINAL]
Why the plat was made with such irregular blocks and streets is not disclosed by the testimony. The town of Forest City was not incorporated until the year 1878. Plaintiff purchased her property from one Felter, in the year 1883; and, while he (Felter) owned it, he had the county surveyor locate the boundaries of his lots and set his fences accordingly. When he sold to plaintiff, he pointed out the boundaries, according to the fences set by him, which, down to that time, had not been questioned. The entire block was, at that time, fenced on all four sides, and there was nothing on the ground indicating that there was an alley running east and west through the strip. Plaintiff's deed, however, described the property as Lots 1, 4, 5 and 8, in Block 60, Forest City, and the deed to Felter contained the same description. After plaintiff purchased the property, she went to the county surveyor, and was informed that the fences then around the block marked the true boundaries of the land. Thereafter, plaintiff improved her property with reference to these fences, erected a dwelling house, a barn, and some other outhouses, filled in and graded the lots, which were at some places low and swampy, and set out trees and shrubs. In the year 1900, plaintiff sold Lots 5 and 8 in said block to one Holmes, and Holmes thereafter sold the property purchased by him to one Hewitt, who is now the owner thereof, the description being the same as in the deed to Felter. Hewitt was desirous of erecting a garage on or near his property, and discovering, some time in the year 1912, what he thought to be an alley between his property and that belonging to plaintiff, he went to the city council to have this alley opened. The council then concluded to do this, and at the same time to open the street west. This action followed.
I. In the petition, plaintiff describes her property as follows:
This description was evidently made upon the theory that, if there be any property outside the lots deeded to her, Nos. 1 and 4, she is entitled to it by adverse possession, acquiescence, or estoppel. We have disposed of the controversy as to the north and west lines, and need refer only to the east and south ones. Plaintiff practically concedes that there was a tract of land between Lots 4 and 5 in Block 60 which was not covered by her deed, although she says, and there is testimony to the effect, that she did not know of this until about the time she sold Lots 5 and 8 to Holmes, and that she did not until that time actually know that there ever was an alley or strip running through the block which was dedicated for an alley or other public purposes.
As to the east line, she, of course, knew there was a street at that point, but she thought the line was the fence which Felter pointed out to her, and did not know to the contrary until about the time this litigation was commenced. There was, as we have said, a street which was open to travel on that side of the block, and the only question was as to the true line. She is in no position to claim any part of that street through adverse possession, for the statute of limitations does not run against the government or any of its instrumentalities, including a town or city. Quinn v. Baage, 138 Iowa 426, 114 N.W. 205; City of Waterloo v. Union Mill Co., 72 Iowa 437, 34 N.W. 197; Taraldson v. Incorporated Town of Lime Springs, 92 Iowa 187, 60 N.W. 658; McElroy v. Hite, 154 Iowa 453, 135 N.W. 20; Bridges v. Incorporated Town of Grand View, 158 Iowa 402, 404, 139 N.W. 917. The town, however, may, by conduct, estop itself from claiming to the true line, as by permitting the owner to make valuable improvements with reference to another line, without making any objections thereto. But as a rule, the erection of fences, or the planting of shrubbery or trees, will not be such an improvement as is here referred to. Johnson v. Town of Shenandoah, 153 Iowa 493, 133 N.W. 761; Bridges v. Grand View, supra.
If plaintiff is entitled to maintain a line which is not the true one, against the city, she must show something else aside from the fact that she or her grantor built fences, and set out trees and shrubs. She claims, however, that the line as claimed by her is the...
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