Dugan v. Zurmuehlen
| Decision Date | 11 January 1927 |
| Docket Number | 37722 |
| Citation | 211 N.W. 986,203 Iowa 1114 |
| Parties | ANNA DECKER DUGAN, Appellant, v. WILLIAM ZURMUEHLEN et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED JULY 1, 1927.
Appeal from Des Moines District Court.--OSCAR HALE, Judge.
Action to enjoin the defendant from maintaining a fence on the center line of an alleged 16-foot public alley, arising, as claimed by plaintiff, either by implied dedication or by prescription. The trial court determined the equities to be in favor of the defendants. Plaintiff appeals.
Affirmed.
Seerley & Clark, for appellant.
La Monte Cowles, for appellees.
DE GRAFF, J.
The material question involves the sufficiency of the evidence to establish a 16-foot alley between the plaintiff's lot and the land of the defendants. Plaintiff pleads dedication and prescription. The defendants traverse the allegations, and allege the fact to be "that the said land for more than ten years last past has been under fence and in possession and control of the defendants, and said possession has been public, open, adverse, and hostile to the plaintiff and to the whole world, and deny that any person other than defendants has any right, title, or interest therein as a public highway or otherwise." The decree of the trial court causes plaintiff to become the appellant.
The factual geography indicating the locus in quo is shown by the annexed drawing.
The defendants are the owners of the tract of land extending from Mt. Pleasant Street south to Lucas Avenue, and abutting 643.87 feet on the west line of the alley in question. Adjoining this tract and abutting the east line of said alley 190.04 feet is plaintiff's Lot 31 of Moore's Subdivision of the city of Burlington, Iowa.
It is conceded that defendant's land has been platted, and is known as Starr and Cook Subdivision, but that said plat has never been recorded in the office of the county recorder of Des Moines County. It is also conceded that there never was any platted alley upon any part of the land owned by the defendants, but that the recorded plat of Moore's Subdivision shows an 8-foot alley immediately west of the west line of said subdivision. It is shown that, in 1856, prior to the platting and recording of Moore's Subdivision, Henry Moore, the then owner of the land in said subdivision, joined with the owners of land south of Lucas Avenue in the dedication of an alley 16 feet wide, which alley is between the subdivision and the land immediately west, now owned by the defendants. The then owners of the land now owned by the defendants did not join in the deed of dedication.
South of the defendants' property is a ravine, and on the north side of Lucas Avenue the approach is quite steep, making passage impossible.
In 1853 and in 1857, Lyman Cook and H. W. Starr became seized of the tract of land now owned by the defendants. In 1867, one Peter Berens became the owner by deed from Cook and Starr of part of the land in question, containing 4.53 acres, and known as Hyde park. Through mesne conveyances, the title in 1902 became vested in Frederick William Zurmuehlen, and upon his death intestate in 1913, the instant defendants, as heir and widow, respectively, of the said Frederick William Zurmuehlen, became the title holders of this land.
[SEE LAND IN ORIGINAL]
Plaintiff and her ancestors have had title to Lot 31 since the early sixties. It is also shown that, sometime in the early sixties, and shortly after the attempted dedication of the 16-foot alley, a fence was constructed, presumably by the then owner of the land now owned by the defendants. This fence was on the west line of the 16-foot alley in question, and the fence remained until it was destroyed by the process of time. In 1902, Frederick William Zurmuehlen constructed a new fence on a line 8 feet east of the original line fence, and it is this new fence that is provocative of the present action.
The theory of the plaintiff is that the defendants are ignoring the rights of the public in a 16-foot alley, and are obstructing the said alley, preventing the public from occupying and enjoying the use thereof for its full width. It is, in effect, a plea of public nuisance, "to the public damage generally, and of this plaintiff in particular."
This cause, reduced to final analysis, involves a dispute between abutting property owners on the alley in question,--the city not being a party. If the fence in question is in a public alley, as claimed, it constitutes an obstruction, and is, therefore, a nuisance, as defined by the statute.
It is important to observe that the east 8 feet constitute an alley by express dedication and acceptance, and with this strip we are not concerned. Is there a 16-foot alley, and, if so, for what legal reason? The question presented is one primarily of fact.
I. Our first inquiry is directed to the claim of implied dedication. The doctrine of dedication is based upon public policy and public convenience. It is analogous to the doctrine of equitable estoppel; and implied dedication, as a general rule, operates on this principle. De Castello v. City of Cedar Rapids, 171 Iowa 18, 153 N.W. 353; Marratt v. Deihl, 37 Iowa 250; City of Dubuque v. Maloney, 9 Iowa 450.
A dedication is often spoken of as operating by way of grant, but it differs therefrom in this particular: that there need not be a grantee in esse at the time of the dedication, to give it effect.
The distinction between statutory and common-law dedication is that the former operates by way of grant, and the latter by way of an estoppel in pais. Another distinction is that a right conferred by common-law dedication is an easement only; while in most statutory dedications, the fee of the property is in the municipality to which the dedication was made. The primary thought is that the right or title acquired by dedication has its existence in the owner's consent, either actual or implied. The right or title acquired is not viewed as one by adverse possession, predicated on the assertion of title in hostility to that of the record owner. Whatever the nature of the declarations or acts relied upon to create a dedication, it is the universal holding that intention to dedicate (animus dedicandi) must exist. The act or acts must be such that the intention may be inferred or the owner estopped from denying an intention to dedicate his property to the public use. Jones v. Peterson, 178 Iowa 1389, 161 N.W. 181; Wensel v. Chicago, M. & St. P. R. Co., 185 Iowa 680, 170 N.W. 409. The intention must be clearly and unequivocally manifested. Bradford v. Fultz, 167 Iowa 686, 149 N.W. 925; O'Malley v. Dillenbeck Lbr. Co., 141 Iowa 186, 119 N.W. 601. This is true whether the dedication is claimed by acts in pais or by conveyance of record. The intent must be unmistakable in its purpose, and the acts upon which the intent is predicated must be decisive in character. The substantial difference between express and implied dedication is in the mode of proof, but no writing or conveyance is necessary, to render a dedication effective. Jochimsen v. Johnson, 173 Iowa 553, 156 N.W. 21; O'Malley v. Dillenbeck Lbr. Co., supra.
The statute of frauds is not applicable. The intent to dedicate may be established in any conceivable way, but the act or declaration must clearly evince the intent to dedicate. Carter v. Barkley, 137 Iowa 510, 115 N.W. 21.
A dedication, like a contract, consists of an offer and an acceptance, and there must be an acceptance. Incorporated Town of Cambridge v. Cook, 97 Iowa 599, 66 N.W. 884; Town of Kenwood Park v. Leonard, 177 Iowa 337, 158 N.W. 655; De Castello v. City of Cedar Rapids, supra.
Long acquiescence in user by the public may, under certain circumstances, operate as a dedication of land to the public use. As said in Knight v. Heaton, 22 Vt. 480:
"It is every day's practice to presume a dedication of land to the public use from an acquiescence of the owner in such use."
An offer of dedication, to bind the dedicator, need not be accepted by the city, but may be accepted by the general public. Laughlin v. City of Washington, 63 Iowa 652, 19 N.W. 819; 18 Corpus Juris 77, Section 73. To deny this would be to deny the whole doctrine of implied dedication.
The sufficiency of the evidence will depend, in a measure, on the character of the property claimed to be dedicated. Manderschid v. City of Dubuque, 29 Iowa 73; Fisher v. Beard, 32 Iowa 346; Wilson v. Sexon, 27 Iowa 15. However, a claimed dedication to public use is not to be presumed against the owner of the land, but must be established by acts and declarations of the owner of such a public and deliberate character as makes it generally known, and of no doubtful intention. Whatever presumption of intent to dedicate may exist, under the circumstances of any case, may be rebutted by circumstances incompatible with the supposition that a dedication was intended. The user is presumed to be permissive, and not adverse.
The ordinary rules of evidence, including the burden of proof, apply to dedication. The proof must be strict, cogent, and convincing, and the acts proved must not be consistent with any other construction than that of dedication; and the same rule applies to the acceptance of the dedication. Morrison v. Marquardt, 24 Iowa 35.
It has been held that stronger evidence is necessary to establish a local road than to establish a thoroughfare between towns. Onstott v. Murray, 22 Iowa 457; Jackson v. State, 46 Tenn. 532, 6 Cold. 532.
The theory of the law is, where proof of dedication rests upon user, that the essential intention existed at the beginning of the use, and continued through the whole period necessary...
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