Coe College v. City of Cedar Rapids

• Decision Date: 21 May 1903
• Citation: 95 N.W. 267,120 Iowa 541
• Parties: COE COLLEGE, Appellant, v. CITY OF CEDAR RAPIDS
• Court: Iowa Supreme Court

95 N.W. 267

120 Iowa 541

COE COLLEGE, Appellant, v. CITY OF CEDAR RAPIDS

Supreme Court of Iowa, Des Moines

May 21, 1903

Appeal from Lynn District Court.--HON. H. M. REMLEY, Judge.

ACTION to quiet title to a strip of land in an addition to the city of Cedar Rapids. The defense interposed was that it had been dedicated as a street and accepted as such by the city. A portion of the plat is annexed. Surveyor's notes were attached stating that certain named streets were continuations of the streets of the same name in the original plat of Cedar Rapids. "Polk street has a set-by at Iowa (First) avenue of sixty feet, as shown on plat, and is eighty feet wide." Some of the lots are sixty feet by one hundred and forty feet, others eighty feet by one hundred and forty feet, and still others one hundred feet wide and three hundred and thirty feet long. "Fractional blocks Nos 10, 13, 16, and 17 are fractional as shown on plat." All streets save the strip in dispute are designated by some name, and their breadth given. On hearing the petition was dismissed, and plaintiff appeals.--.Reversed.

REVERSED.

Heins & Heins and Deacon & Good for appellant.

J. N Hughes for appellee.

The following is the plat referred to:

[SEE PLAT IN ORIGINAL]

LADD J. MCCLAIN, J. (dissenting).

OPINION

LADD, J.

In 1871 the owners of a tract of land caused it to be surveyed, and map thereof made, acknowledged, and recorded. It was designated "Green and College Addition to Cedar Rapids." Because of alleged defects in the title this dedication was ratified by plaintiff in 1880. That part of the map only which is essential to an understanding of the controversy is set out. The parcel of land in dispute lies between block fourteen and fractional block thirteen. The line crossing block thirteen is the section line, forming the south boundary of the proprietor's land, that below belonging to one Calder, since deceased. The distance from the southwest corner of block fourteen, parallel with its south boundary, is a little less than eight feet. It will subsequently appear that there is nothing to show how far apart the two blocks are. The city of Cedar Rapids, first formally asserted title to the disputed land in October, 1898, by ordering that a street be extended between blocks thirteen and fourteen from First to Second avenues, sixty feet wide, immediately west of block fourteen, that all west thereof to block thirteen be vacated; that the portion vacated below the alley be exchanged with Calder for that within the sixty feet below the section line; and that the portion vacated north of the alley be sold to the owner of lot five in block thirteen for $ 600. Thereupon plaintiff began this action, asking that its title to the land be quieted.

The plaintiff's title is conceded in the pleadings, unless lost by dedication to the public as a street. Did the acknowledgment and recording of the map amount to such dedication of this strip? The Code of 1860, under which the ground was surveyed and platted, allowed the proprietor of a tract of land to make a plat thereof as therein prescribed. First he must cause a survey to be made, marking the lots with stakes, and fixing a stone in a permanent manner in some point in every street. Second, an "accurate map shall be made of such plat, designating the corners where the stakes are placed and the points where the stones are fixed, and marking and describing the length and breadth of the lots, as well as the breadth and courses of the streets and alleys, and the breadth shall be designated by feet and inches when practicable." Revision 1860, sections 1017, 1018. The acknowledgment and recording of such map is declared to be a deed in fee simple of such portion of the land as is therein set apart for public use. The Code of 1873, under which the dedication was ratified, did not differ materially from that of 1860. In this way numerous and complicated descriptions of land to be conveyed in small parcels are avoided, and the location of each and the intervening streets and alleys clearly exemplified. All are described in one instrument, and by reference to it every subdivision may be found, and the mention of lots or blocks by numbers, or the streets and alleys by name, or some equally explicit designation, becomes as definite and certain as though described by metes and bounds. Brown v. Taber, 103 Iowa 1, 72 N.W. 416; Milburn v. City of Cedar Rapids, 12 Iowa 246.

Strict compliance with such statutes ought not to be exacted. But they are to be followed substantially, and by this we mean that the divisions into which the tract of land is separated by the acknowledgment and recording of the map should be pointed out with such precision, and the boundaries so fixed therein, as that these may be certainly and definitely located from the data furnished. Otherwise the object of the statute is not attained, and resort to description by metes and bounds rather than by reference to the map will be essential in the transfer of titles. Ordinarily the map, with the accompanying notes and acknowledgment, must speak for itself, and, as no intrinsic evidence was offered, we are not to look beyond these in the instant case. Do they urnish data pointing out a definite portion of the tract platted? If so, do they indicate an intention to dedicate it as a street? These inquiries must be answered in the negative. With respect to it and fractional block thirteen, the requirements of the statute were ignored to such an extent as to indicate that because of their situation no dedication was intended: (1) Neither the corners of this block nor any lot therein are indicated; (2) the breadth of the disputed strip of land is not given; (3) no point therein marks the location of a stone as in the street; (4) the strip is not named a street; (5) the proprietors could not well make of it a public thoroughfare.

Let us see if there is any sufficient explanation of these omissions and defects. Appellee contends that the width of this strip and the lots in block thirteen may be ascertained by computation. Twelfth street is designated Polk street on the original plat, and has a set-by, according to the surveyor's notes, of sixty feet at First avenue, and is declared therein to be eighty feet wide. But appellee argues that it is a continuation of a street sixty feet wide in the original plat of Cedar Rapids, and hence must have been but sixty feet wide below First avenue. If so, it is said that lot one in said block must be eighty feet wide, the other lots sixty feet each, and this strip eighty feet, thereby explaining the appearance of the map. But the trouble with this arrangement is that there is nothing in the record to indicate that this street was to be a continuation of a street in the original plat, and such plat was not introduced in evidence. As other streets are specifically mentioned as being such continuations, the omission of Polk street as one of them indicates it was not included. But, even if included, the width stated cannot be rejected merely for the purpose of corresponding with a street elsewhere of the same name, supposed to be narrower. Nor will this court take judicial notice of the width of the streets even in cities organized under special charter. While courts take notice of the incorporation of municipalities by special acts of the legislature and of the territory included, it is because these matters are disclosed by the enactments themselves. See Hard v. City of Decorah, 43 Iowa 313. The streets of Cedar Rapids were not established in its charter, and their width is matter of proof, the same as if in a city organized under the general law of the state. See Diggins v. Hartshorne, 108 Cal. 154 (41 P. 283); Porter v. Waring, 69 N.Y. 250; 17 Am. & Eng. Ency. of Law, 939.

It is further argued that as the distance from the northwest corner of block fourteen to the northwest corner of block thirteen is but the sixty feet "set-by" greater than the south side of College Block, it must be six hundred and eighty feet, and that as deducting the frontage of the block fourteen leaves but three hundred and eighty feet, this must have been divided into five lots of sixty feet each, and eighty feet left for a street. But what evidence have we that the dedicators so intended? Nothing whatever, save the existence of the lines on the map. In no other respect was the statute followed. An estimate by measuring these lines and comparing with the scale of the map would not furnish reliable data from which to make computation. Palmer v. Osborne, 115 Iowa 714, 87 N.W. 712; Minneapolis & St. Louis Ry. Co. v. Town of Britt, 105 Iowa 198, 74 N.W. 933. Moreover, a glance at the map indicates that even a measurement of the lines would not produce this result, and show lots to be of the same width.

Nor can the width of the lots or strip, as suggested, be inferred from uniformity in the map; for some of the streets are noted as being of the same breadth as the original plat of Cedar Rapids, said by appellee to be sixty feet, and First avenue is one hundred and twenty feet wide. Some of the lots are sixty feet in breadth, others eighty feet, and still others one hundred feet. Effect should be given all lines and marks in such a map, if possible but a description ought not to be supplied by mere assumption. Indeed, the entire argument of appellee is based on the assumption that the lots in block thirteen and the disputed strip have their boundaries defined. Of course, the platting of block thirteen is material only as it may aid in settling the question at issue. Certainly the record furnishes no data by which to fix upon the breadth of the ground in dispute. Nor is it marked by a stone. Nor is it designated a street. If stakes were set at the...