Davis v. Pickerell

• Decision Date: 09 July 1908
• Parties: G. W. DAVIS, Appellant, v. M. K. PICKERELL ET AL
• Court: Iowa Supreme Court

117 N.W. 276

139 Iowa 186

G. W. DAVIS, Appellant, v. M. K. PICKERELL ET AL

Supreme Court of Iowa, Des Moines

July 9, 1908

Appeal from Mahaska District Court.-- HON. K. E. WILCOCKSON, Judge.

THE plaintiff appeals from a ruling by which a demurrer to his petition was sustained.-- Affirmed.

Affirmed.

J. O Malcolm and D. C. Waggoner, for appellant.

J. C Williams and Lacey & Lacey, for appellees.

OPINION

LADD C. J.

Plaintiff is owner of the W. 1/2 of the N.W. 1/4 and the N.W. 1/4 S.W. 1/4 of section 21 in township 74 N. range 17 W. of fifth P. M. Between these tracts is a public highway under the surface of which about twenty-five years ago, he constructed a causeway three feet wide and fourteen feet long, through which his stock passed from the south forty acres to the land north of the road. This was by permission of the board of supervisors of the county, orally given, and was continued until 1906, when, becoming unsuitable for the purpose, owing to drainage through it by the highway authorities, plaintiff constructed another causeway fifteen or twenty rods west of the first, which in June, 1907, was removed by the defendant Pickerell, a road superintendent of the township, with the approval of the other defendants, who are the township trustees. To the petition stating these facts and praying for damages a demurrer was interposed and sustained. The points raised in argument are (1) whether the original permission or license to construct the first causeway was authority to erect the last; and (2), if not, whether defendant was authorized to remove it as an obstruction to the highway. The board of supervisors is given general supervision of the highways in the county. Section 1483, Code, "Upon application by any person to the Board of Supervisors of any county for permission to construct a cattleway across, over or under any public highway the board may grant the same; provided said cattleway shall not interfere with the travel upon said highway; but the person who applied for said cattleway shall construct the same at his own expense and be responsible for all damages that may arise from its construction or from the same not being kept in good condition, and that the grade of the highway over the cattleway shall not exceed one foot in ten." Section 1, chapter 111, 16th Gen. Assem.; Section 1524, Code. This statute, in authorizing the construction of a cattleway with permission of the board of supervisors, impliedly prohibits the construction of a cattleway without such permission, and, as held in Gould v. Schermer, 101 Iowa 582, 70 N.W. 697, the erection of the last cattleway constituted a nuisance. Even though plaintiff had the fee in the highway, it was subject to the easement of the public, and he could not interfere with its proper control by the board of supervisors and road officers. That plaintiff was permitted to construct a causeway some twenty-five years ago gave him no right to put in that removed, even though such permission did not definitely locate the place. The place of the first was determined by its construction in accordance with plaintiff's election and acquiesced in by the county. This fixed it as definitely as though designated by a resolution of the board. The permission...