Dickson v. Davis County
| Decision Date | 20 October 1925 |
| Docket Number | 36917 |
| Citation | 205 N.W. 456,201 Iowa 741 |
| Parties | W. C. DICKSON et al., Appellants, v. DAVIS COUNTY et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 19, 1926.
Appeal from Davis District Court.--E. S. WELLS, Judge.
ACTION for injunction against the defendants to prevent them from moving certain fences along the highway running through plaintiffs' land. The lower court dismissed plaintiffs' petition, and plaintiffs appeal.
Affirmed.
T. P Bence and J. R. Jaques, for appellants.
Buell McCash, County Attorney, for appellees.
Plaintiffs are the owners of the land on both sides of a road running between Section 34, Township 69, Range 15, and Section 3, lying immediately south thereof. They also own two blocks of land lying in the town of West Grove, which is platted in the southwest quarter of Section 35, lying immediately east of the aforesaid Section 34. These blocks lie on the north side of the same road above referred to.
The defendants herein served notice on the plaintiffs to remove the fence from the public highway, claiming that the highway was 66 feet in width. Plaintiffs refused to do so, on the claim that the highway was only 60 feet wide. Plaintiffs brought this action for an injunction against the defendants. This will suffice for a statement of the issues between these parties.
To a better understanding of the matters in controversy herein, we set out a plat of the territory involved.
[SEE PLAT IN ORIGINAL]
On the 14th day of February, 1844, the council and house of representatives of the territory of Iowa passed an act to locate a territorial road from Keosauqua, in Van Buren County, to the western line of Appanoose County. In pursuance of said act, the commissioner proceeded to locate the road, and the same was established on the 17th day of October, 1844. This road passed through the territory in controversy, and is indicated on the plat as running on the south side of Sections 28, 29, and 30 in Range 14, and on the south side of Sections 25 and 26 in Range 15; thence in a diagonal direction across Sections 34 and 33 to a point in the northwest part of Section 4. In February, 1852, a petition was filed with the county court of Davis County, being the county in which this territory lies, asking the court for an alteration of the road running from Bloomfield to Centerville (a part of which is the road in controversy herein), indicating the alteration desired as follows:
"Commencing at the northeast corner of the northwest quarter of Section 31, Township 69 north, Range 14 west, and running thence by the best route to the southwest corner of the southeast quarter of Section 36, Township 69 north, Range 50, and running thence on the township line west to the point where the said old road strikes the said township line."
This was signed by numerous petitioners; among others, the father of the plaintiffs. Due proceedings were had, which resulted in the granting of the prayer of the petitioners. A commissioners' report was filed, and the road was approved and established on the 3d of May, 1852.
By reference again to the plat, it is observed that this last designated road started on the north line of Section 31, Range 14, taking a southwesterly direction to the south line of Section 36, Range 15, this being the township line; thence west on the township line to a point near the quarter corner on the south line of Section 33. This whole controversy turns on the lone question of whether the last named road, running on the township line south of Sections 34 and 35, is 66 feet wide, as claimed by the defendants, or 60 feet wide, as claimed by the plaintiffs. Final determination of this question rests upon the legal enactments involved herein. The aforesaid act of the council and house of representatives, being Chapter 115 of the Territorial Laws of 1844, provided for this road and designated it as a territorial road, but made no provision for its width. However, in the Revised Statutes of the Territory of Iowa for 1843, Section 6 of Chapter 123 reads as follows:
"All territorial roads authorized to be laid out by any law of this territory, and not yet commenced, shall be laid out in the manner prescribed in this act, * * * and further, the established width of all territorial roads shall be seventy feet."
This law was enacted and approved on December 29, 1838. Hence it was in operation at the time of the passage of the aforesaid act, establishing the territorial road in controversy herein. However, the appellants herein insist that this last quoted statute is not effective herein, but claims that this situation is governed by Section 1 of Chapter 125 of the said Revised Statutes. That section reads as follows:
"All county and territorial roads which have been or may hereafter be laid out and established agreeably to law, in this territory, shall be opened and kept in repair in the manner hereinafter provided; and all county roads shall hereafter be laid out and established agreeably to the provisions of this act, and all county roads shall be sixty feet wide, unless the commissioners of the county, upon petition, should determine on a less number of feet in point of width, on any road so petitioned for."
The appellants largely base their case on this statute. To our minds, the question is not debatable. The law is operation at the time the original road was laid, made the width of all territorial roads 70 feet. The section of the statute relied on by the appellants, above quoted, is in no way in conflict with Section 6 of Chapter 123. The last named section deals wholly with territorial roads. The section in Chapter 125, while dealing generally with territorial and county roads, makes no reference whatever to the width of territorial roads, but specifically provides that the width of county roads shall be 60 feet.
Appellants urge that, because a part of the road between Keosauqua and the west line of Appanoose County included several miles of county road in Van Buren County, this should lead to the conclusion that the old road, some 60 miles in length, should also be treated as a county road. We have no opportunity to thus construe the matter, if we were so disposed, because the legislature, in the act establishing this road, specifically designated it as a territorial road. We conclude, therefore, that the road laid in 1844, in pursuance of that act, was a territorial road, 70 feet in width.
The appellants again urge that, when the petition or application was made for a change of this road, it was referred to as an alteration, and that, therefore, the new road, when laid, was a part of the original territorial road, and should be treated as such. We do not deem this conclusion correct. In our...
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DiCkson v. Davis Cnty.
...201 Iowa 741205 N.W. 456DICKSON ET AL.v.DAVIS COUNTY ET AL.No. 36917.Supreme Court of Iowa.Oct. 20, 1925 ... Appeal from District Court, Davis County; E. S. Wells, Judge.Action for injunction against the defendants to prevent them from moving certain fences along the highway running through plaintiffs' land. The lower court dismissed plaintiffs' ... ...