City of Lake City v. Fulkerson

• Decision Date: 03 February 1904
• Citation: 98 N.W. 376,122 Iowa 569
• Parties: CITY OF LAKE CITY, IOWA, Appellant, v. CYRUS FULKERSON, et al
• Court: Iowa Supreme Court

98 N.W. 376

122 Iowa 569

CITY OF LAKE CITY, IOWA, Appellant, v. CYRUS FULKERSON, et al

Supreme Court of Iowa, Des Moines

February 3, 1904

Appeal from Calhoun District Court.--HON. S. M. ELWOOD, Judge.

SUIT in equity to quiet the title to the vacated portion of a certain street. In 1887 the defendant Fulkerson platted an addition to the plaintiff city, which was duly executed and recorded and which dedicated to public use Oak street, a street fifty feet wide, running east and west through said addition. In May, 1892, Fulkerson and the other appellees petitioned the city council for the vacation of that part of Oak street between blocks 4 and 5 and blocks 6 and 7 in said addition and thereupon the council vacated that part of the street by an ordinance duly adopted and recorded. The defendants other than Fulkerson are owners of property abutting the vacated portion of the street. Fulkerson claimed in his answer that the title thereto reverted to him upon its vacation, and set up other defenses, while the other defendants pleaded various defenses, including adverse possession. There was a judgment for the defendants, and the plaintiff appeals.

Reversed.

Hutchinson & Jacobs for appellant.

No appearance for appellees.

OPINION

SHERWIN, J.

As the appellees have not argued the case we do not know upon what they rely to sustain the judgment below. The dedication of the street to public use seems to have been full and unreserved, and to have been recognized and accepted by the plaintiff, which was at that time an incorporated town. Under section 996, McClain's Code, the acknowledgement and recording of such plat was equivalent to a deed in fee simple of the land therein set apart for streets or other public use; and we have held that, where such an unrestricted dedication has been made, it does in fact vest an absolute title in the municipality, and that, upon the vacation of a street so conveyed, the title thereto does not revert to the original owner. McDunn v. City of Des Moines, 34 Iowa 467; Pettingill v. Devin, 35 Iowa 344; Day v. Schroeder, 46 Iowa 546. That the town had the power to vacate the street cannot be questioned (McClain's Code, section 623; Marshalltown v. Forney, 61 Iowa 578, 16 N.W. 740), and its vacation upon the petition of the defendants estops them from now questioning the exercise of such power. Having conveyed to the municipality the fee of the street, it requires no argument to demonstrate that a subsequent conveyance of abutting lots could give the grantee no title to any part of the street. Milburn v. City of Cedar Rapids et al., 12 Iowa 246.

It is clear, then, that the title to the street did not revert to either Fulkerson or any of his grantees, and that whatever rights he or they may have therein must be based upon some other ground. He pleaded an estoppel, based upon the fact that he had been ordered by the town to...