Davelaar v. Marion County
| Decision Date | 15 February 1938 |
| Docket Number | 43964. |
| Citation | 277 N.W. 744,224 Iowa 669 |
| Parties | DAVELAAR v. MARION COUNTY et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Marion County; Norman R. Hays, Judge.
This is an action for an injunction to restrain the defendants Marion County Supervisors, from removing plaintiff's fence along the highway, claimed to be an obstruction to the highway. The court denied the injunction, dismissed plaintiff's petition, and taxed the costs to plaintiff. Plaintiff has appealed.
Affirmed.
Superseding opinion, 274 N.W. 305.
Vander Ploeg & Heer, of Knoxville, for appellant.
Leon N. Miller and H. E. De Reus, both of Knoxville, for appellees.
This case was originally submitted at the June, 1937, period of the May term. Petition for rehearing was granted and the case reargued and again submitted. While we reach the same conclusion, it is deemed advisable, because of a misstatement of some of the facts, that the former opinion which appears in 274 N.W. 305 should be, and the same is, withdrawn. The plaintiff in this action is the owner of the east half of the southeast quarter of section 15, township 77 north, range 19 west of the 5th P. M. in Marion county, Iowa. For more than fifty years there has existed along the south and east boundary line of the plaintiff's land, a public highway approximately 40 feet in width. The fences along this highway have been in their present location during all of said time. Marion County, through its Board of Supervisors, acting on the theory that this road when it was established was a 66-foot road, on the 10th day of September, 1936, caused to be personally served on the plaintiff, under the provisions of chapter 248 of the 1935 Code of Iowa, section 4834 et seq., notice to remove obstructions, to wit, his fence, back on the 66-foot line.
Upon being served with said notice, plaintiff instituted this injunction suit alleging that the defendants are threatening to enter upon his land and to remove the fence between his premises and the highway, and praying that they be restrained and enjoined from so doing. Answering this petition the defendants alleged that on or about the 9th of January, 1868 a public highway 66 feet or 4 rods wide was located and established on the south and east side of plaintiff's said land, the center line of which was and is described as commencing 50 links (two rods or 33 feet) north of the quarter section corner of the south line (the southwest corner of the southeast quarter) of section 15, township 77 north, range 19 west of the 5th P. M., thence east one-half mile less two rods, thence north three-fourths of a mile that said highway has been continuously used by the public for more than sixty-five years, and that upon said described highway the plaintiff has erected or maintained certain obstructions and fences; that notice under chapter 248 of the Code was served upon the plaintiff to remove said obstructions, and that plaintiff has failed and neglected and refuses to remove the same; and that under the provisions of said chapter of the Code, and especially sections 4837 and 4839 thereof, the defendants expect to remove said fence and obstructions or cause the same to be removed; wherefore, they pray that the plaintiff's petition be dismissed, and that it be judicially determined by the court that a public highway has been established and now exists on the east four rods of plaintiff's said land described above.
Replying to this answer the plaintiff alleges and states: " That he refuses to remove the fence along the east side of the premises owned by him and denies that the same is located upon the public highway and states that said fence is in fact located upon the line between his premises and the public highway along the east side thereof as established and dedicated to the public." There was a trial to the court, and at the conclusion of the evidence on the 21st day of December, 1936, the case was taken under advisement. Later, at the same term, to wit, the 28th day of December, 1936, the court filed a written ruling with findings as to the facts and the law, and upon said findings based his judgment dismissing plaintiff's petition and rendering judgment in accordance with said written opinion.
The case presented a rather close and difficult legal question necessitating on the part of the trial court a careful investigation and analysis of the prior holdings of this court. That the able trial court did not fail to give the matter the serious and close attention which the question deserved is shown by his carefully prepared written ruling which was set out in the former opinion, and which we are again incorporating herein. We have made a careful investigation of the authorities and reach the conclusion that no better analysis of the legal precedents bearing upon the question involved could be made than is set forth in the trial court's opinion, and the deductions and legal conclusions arrived at are logical and legally sound and are adopted and approved by this court. We quote:
" This is an action for an injunction to restrain the defendants, Marion County Supervisors, from removing plaintiff's fence along a highway, as an obstruction to the highway. Plaintiff alleges that for more than fifty years the fence in question has been maintained as now, and denies that it is an obstruction. Defendants allege that the road is a regular established 66-foot highway, and that the fence in question obstructs it. Defendants offer in evidence, in support of their claim that it was a regularly established highway, the road record in the county auditor's office. That record shows, under date of January 9th, 1868, the following entry:
Under the record it is established that the fences are now in the same location that they have been for more than fifty years, and are about forty feet apart; that the owners of the land through which the said described highway runs are as set forth in the road record, and that plaintiff derives his title through such owners; that sufficient notice to move the fence was duly served upon plaintiff. The only question to be determined is whether or not the said proposed highway was established, as claimed by defendants, and this question is still further reduced to whether or not the Board of Supervisors, on January 9, 1868, had jurisdiction in the first instance to proceed in the establishment of the same, for there is no question under the record as to the road being established if jurisdiction was had by the board in the first instance. Under section 820, R. 1860, the highway, if legally established, is 66 feet in width, and this is conceded by all parties herein.
Under the statutes in force at the time in question, January 9 1868, the Board of Supervisors of the county had general supervision of the highways in the county, with power to establish. Section 819, R. 1860. Section 824 to 827, R. 1860, defines the preliminary procedure in the establishment of a highway upon petition, and section 828 provides that the court (county board), if satisfied that the above-mentioned prerequisites have been complied with, sections 824 to 827, inclusive, shall appoint a commissioner. Sections 829 to 857, inclusive, deal with the duties of the commissioner, the assessment of damages, and the opening and working of the highway. Section 858 states: ‘ Roads may be established without the appointment of a commissioner, provided the written consent of all the proprietors of the land to be used for that purpose be first filed and recorded.’ This section read in conjunction with section 828 means that the board, if satisfied that the required prerequisites (the written consent of all of the proprietors of the land to be used for that purpose be first filed and recorded), have been complied with, the board may establish the highway without the appointment of a commissioner. In my judgment, those aforesaid prerequisites are jurisdictional and mandatory. ‘ When a...
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