City of Cedar Rapids v. Young

• Decision Date: 09 February 1903
• Citation: 93 N.W. 567,119 Iowa 552
• Parties: THE CITY OF CEDAR RAPIDS, Appellant, v. JAMES C. YOUNG
• Court: Iowa Supreme Court

93 N.W. 567

119 Iowa 552

THE CITY OF CEDAR RAPIDS, Appellant, v. JAMES C. YOUNG

Supreme Court of Iowa, Des Moines

February 9, 1903

Appeal from Linn District Court.--HON. WM. G. THOMPSON, Judge.

ACTION in equity to enjoin defendant from obstructing a street in plaintiff city. Decree for defendant, from which plaintiff appeals.

Reversed.

John N Hughes for appellant.

John A Reed and W. E. Steele for appellee.

OPINION

MCCLAIN, J.

In the absence of any reproduction in the abstract of any of the maps or plats referred to in the evidence (save a plat at the end of appellee's amendment to the abstract, which is not, so far as we can see, referred to in the record itself, and does not purport to be a reproduction of any plat properly in the record), we are compelled to determine this case largely on the view of the evidence which is taken by the counsel for the two parties, respectively. We think, however, that we shall have no difficulty in stating facts practically conceded by both parties, on which a conclusion may properly be reached.

The evidence shows that ever since 1840 there has been a traveled public highway from Cedar Rapids southward, corresponding with second and J streets in West Cedar Rapids. J street runs diagonally through a tract of land which originally constituted the east one-half of block 29 in May, Fero & Gaynor's addition, and defendant claims title to the portions of the lots of that block east of J street. Up to 1897 this road was continuously used as a public highway although, by reason of the fact that at the point in question it runs through low land, it was sometimes impassable, and persons desiring to pass along the course of this general road drove to one side or the other, on higher land; the road at this place not being bounded by fences. However, from time to time attempts were made to improve the road at this particular place; stone being thrown in, and the center of the road raised, to some extent, above the ditches at the sides. In 1897 defendant erected a fence in front of his land, in the middle of the highway, as before traveled, and inclosed the portion abutting on his lots; thus making a jog in the road, and leaving a narrower strip in front of his premises than that occupied by the road on either side of him. His contention is that there is no platted highway adjoining his lots, and that there has been no such dedication or prescriptive use as to give the public a right to pass along this road. We think it is not necessary here to go into a discussion of the law of dedication and prescription, as applied to highways. It is enough to say that if the evidence shows...