Davis v. City of Clinton
| Citation | 10 N.W. 768,58 Iowa 389 |
| Parties | DAVIS v. THE CITY OF CLINTON |
| Decision Date | 06 June 1882 |
| Court | Iowa Supreme Court |
Appeal from Clinton Circuit Court.
ACTION of mandamus to compel the council of the city of Clinton to move or have moved certain obstructions in an alleged public highway. Trial to the court. The relief asked was refused and the plaintiff appeals.
AFFIRMED.
Aylett R. Cotton, for appellant.
I Monroe, A. R. McCoy and E. S. Baily, for appellees.
The pleadings are voluminous. It is deemed unnecessary to state at length the several allegations therein, because we think the case can be satisfactorily disposed of by considering the several grounds upon which counsel for appellant claims the judgment of the Circuit Court to be erroneous. It is conceded the hearing in this court can only be had upon the errors assigned. The material controverted question is, as to the existence of a highway at the place where it is alleged to be obstructed, sixty-six feet wide.
I. It is said the evidence shows the existence of the highway "by prescription, by use by the public, for more than ten years prior to the platting of the Strayer and Davis additions, and as there was no enclosure on the southerly side, the public acquired the right to a highway sixty-six feet wide." As early as 1856 there was a highway over the premises in question. That is to say, there was a road which was used by the public, and it has been continuously used since that time. The premises were then outside of the city limits. At that time or shortly thereafter there was a fence on the northerly side of the road, which it will be conceded has been ever since maintained. The travel passed along within a short distance of the fence, not exceeding, we think, ten feet, and continued to pass over substantially the same route up to the trial in the Circuit Court. On the southerly side of the traveled road there was a tract of uninclosed woodland extending some distance to the Mississippi river. In 1868 one Davis owned the land north, and Strayer that south of the road. In that year, and near the same time, they laid off their respective tracts into lots as additions to the City of Clinton, the corporate limits of which were extended so as to embrace the premises in question. Since the platting of said additions, the highway has been known as Jefferson avenue. If the highway in question is sixty-six feet wide, extending south from the fence aforesaid, then about ten feet of the southerly side of the highway known as Jefferson Avenue is obstructed by a fence, which was erected in 1868, and which has been since that time maintained. The portion of the highway so obstructed never was actually used by the public. No travel at any time passed over it.
Counsel for the appellant insist where the public acquires a highway by prescription or use, the width thereof is sixty-six feet, whether the whole of such width has been used by the public or not. In support of this proposition Manderschid v. City of Dubuque, 29 Iowa 73; Larkin v. Harris, 36 Iowa 93; Hobbs v. Lowell, 36 Mass. 405, 19 Pick. 405, and Angel on Highways, section 144, are cited.
A slight examination of these cases will show that they do not sustain the foregoing proposition. For none of them hold that such highway must necessarily be sixty-six feet wide or of any other particular width. We suppose the claim is made that such a highway must be sixty-six feet wide, because if it had been established in pursuance to the statutes in force in 1856 or 1868, it would have been that width, unless a different width was fixed by the authority directing its establishment. Code, of 1851, § 515; Rev., § 820. But we do not think it follows that a right obtained by use must necessarily equal in all respects that which might have been obtained under the statute. Besides this, under the statute a highway might be of any width between thirty-three and sixty-six feet.
Counsel for appellees insist the public acquires no greater right than the actual use implies. That is to say the width of the highway cannot be greater than is actually used by the public. In support of the foregoing, Watrous v. Southworth, 5 Conn. 304; Walker v. Caywood, 31 N.Y. 51; Epler v. Niman, 5 Ind. 459, and Hannum v. Belchertown, 36 Mass. 311, 19 Pick. 311, are cited. The true rule, we think, and which is sustained by the authorities just cited, or some of them, is, that it is a question of fact for the jury to determine under the facts and circumstances. The court cannot, as a matter of law, say that a road acquired by prescription or use is of any particular width beyond such portion as is actually used by the public. That such a highway should not ordinarily be confined to the path, carriage or wagon road used, we can readily conceive, because there should be room for travelers to pass each other. Beyond this, however, we think, it is a question for the jury. From the southerly side of the traveled highway used by the public to the fence, which is claimed to be an obstruction, the distance must be at least twenty feet. It follows from what has been said that, under the established practice of this court, the finding of the court which has the force and effect of a verdict, cannot be disturbed; as we are clearly of the opinion there is evidence upon which the finding can be sustained, that the fence in question did not obstruct the highway, and that the public, by use and prescription, did not acquire the right to a highway sixty-six feet wide at the place where the alleged obstruction exists.
II. It is said "there is proof of the dedication of the road by consent of E. M Davis when he owned all the lands through which it ran." It is true Davis owned the land on both sides of the road for a short time. But there is no evidence showing a dedication...
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