Dwight v. City of Des Moines
| Decision Date | 15 February 1916 |
| Docket Number | 30472 |
| Citation | 156 N.W. 336,174 Iowa 178 |
| Parties | J. H. DWIGHT, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--W. H. MCHENRY, Judge.
ACTION to quiet title and to restrain the defendant from claiming title to or interest in certain land. Plaintiff bases his right to the land on a claim of adverse possession for the statutory period. Judgment and decree for the plaintiff. Defendant appeals.
Reversed.
H. W Byers, Eskil C. Carlson and Earl M. Steer, for appellant.
Oscar Strauss and Don B. Shaw, for appellee.
The plaintiff alleges:
1. That, on March 15, 1905, he purchased and had conveyed to him by warranty deed the following described premises, situated in the city of Des Moines: The East 1/2 of the Northeast 1/4 of the Southwest 1/4 of the Southeast 1/4, Section 31, Township 79 North, Range 24 West of 5th P. M., excepting the north 133 feet thereof.
2. That thereafter, Waveland Place, an official plat of the east 100 acres of the Southeast quarter of Section 31, above described, was platted, and the land purchased by the plaintiff became subsequently Lot 2 of said Waveland Place.
3. That since said time above specified in the year 1905, the plaintiff and his assigns and successors have been in the continuous, undisputed, notorious and adverse possession of all the above described property under color of title.
4. That, in the year 1905, the defendant city erected a fence upon the property of the plaintiff herein, 18 feet east of the west line of the above described property and the said above described Lot 2, Waveland Place, and said fence has been so erected since said time.
5. That at such time and continuously since, the plaintiff has objected to the city concerning the erection thereof and continuance of said fence as an invasion of or trespass upon his property and in contravention of his right in and to said premises, and that the said defendant has continued in the possession thereof and has received and accepted all the benefits and profits therefrom.
6. That the defendant city, on or about the year 1910, acquiesced in the plaintiff's said claim that the said fence should be on a line 18 feet west of where it is now located, and has since such time been willing to purchase the above described premises.
7. That he has been deprived of the use of said premises for more than 8 years; that the defendant has graded and removed soil from said premises and is attempting to use said premises for a road, and that plaintiff has been damaged in the sum of $ 300. And plaintiff prays that the title to said 18 feet be quieted in him and that an injunction issue restraining the defendant from claiming any title or interest therein; that it be required to remove the fence to the west line of plaintiff's land, and that plaintiff be given possession.
The defendant answers:
1. Denying each and every affirmative allegation of the petition.
2. Admitting the allegations contained in Paragraph 2 and disclaiming any knowledge of the facts alleged in Paragraph 1.
3. Alleging and charging the fact to be that, in the erection and maintenance of this fence upon the east line of its property, it has erected and maintained the same wholly on the true line thereof, and without any encroachment upon the property of the plaintiff or any part thereof.
During the trial, without objection, the defendant amended its answer, and alleged: That, if the plaintiff ever had any title to the land in controversy, his claim is now barred by the statute of limitations, for the reason that he has not been in possession of the premises for a period of more than 10 years prior to the beginning of his action; that the defendant city has been in the open, adverse and notorious possession of the premises under claim of title for a period of 10 years previous to the beginning of the action.
Upon the issues thus tendered, the cause was tried to the court and a decree rendered for the plaintiff, adjudging and decreeing that the defendant be forever enjoined from claiming any right, title or interest in and to the 18 feet west of the fence now erected upon Lot 2, Waveland Place, and quieting the title thereto in the plaintiff. From this action, the defendant appeals.
Upon the trial of the case, it was admitted that the plaintiff is the owner of the East 1/2 of the Northeast 1/4 of the Southwest 1/4 of the Southeast 1/4, 31-79-24, except the north 133 feet thereof, and that said description corresponded with what is now known as Lot 2, Waveland Place; that Waveland Place was platted in 1905; that previous thereto, and for at least 25 years, a fence had been erected and was in existence on a line 18 feet west of the west line of Lot 2, Waveland Place; that, in the year 1902, the city of Des Moines platted a plat of ground now known as Glendale Cemetery, and the lot here in controversy adjoined Glendale Cemetery on the east; that the deed to Glendale Cemetery provided that the defendant city should have 60 acres of ground, and, in order to make up the 60 acres, it was necessary for the city to move the fence, heretofore described, 18 feet to the east; that the 18 feet is now the ground that is in controversy in this action. It was further agreed that the fence was moved by the city sometime during the year 1902 or 1903, but more than 10 years previous to the beginning of this action, and the city has, ever since said time, been in possession of said premises, open and notorious, and under claim of title. It was further agreed that the old fence was not on the true survey line; that the ground conveyed to the plaintiff as Lot 2 in Waveland Place was occupied as Lot 2 by his grantors in succession for a period of 25 years prior to the purchase, up to the old fence referred to; that the city changed the fence in 1902 or 1903, and the plaintiff purchased the lot in 1905.
I. It is apparent, therefore, from this record, that the 18 feet in dispute is not a part of the premises owned by the plaintiff as Lot 2, Waveland Place. Plaintiff bases his right to it on the ground, as he alleges in his petition, that he has been in open, notorious and adverse possession of this strip of ground, continuous and undisputed, under color of title, ever since the year 1905. He stipulates, however, that, in the year 1902, the defendant purchased land lying on the west of his lot and adjoining it; that, under the deed to the defendant, it was provided that defendant should have 60 acres of ground, and, in order to make up the 60 acres, it was necessary for the city to move the fence described 18 feet, and that they did move it in 1902 or 1903, and the city has ever since that time been in possession of said premises, open and notorious and under claim of title.
It is further stipulated that, previous to the purchase by the defendant of the land west of Lot 2, a fence had been erected and was in existence on a line 18 feet west of the west lot line of Lot 2, Waveland Place, and the stipulation says thereafter that this fence, as it originally existed, was 18 feet west of the west line of plaintiff's lot and was, therefore, not on plaintiff's lot; that it could be moved 18 feet to the east before it reached the west line of plaintiff's lot; that it was moved 18 feet to the east, and not on plaintiff's lot. This 18 feet was not, therefore, a part of Lot 2, according to government survey or the plat. The stipulation that Lot 2 was occupied by plaintiff's grantors in succession for a period of 25 years prior to his purchase up to the old fence means simply that they were occupying Lot 2 and extended their possession 18 feet beyond the west boundary of their lot to the old fence.
It does not appear by whom the old fence was erected, or that it was ever claimed by anyone to be the true line between plaintiff's land and the land purchased by the defendant, except as such inference might be drawn from the fact of the erection of the fence and occupancy. Plaintiff does not base his right upon acquiescence, but upon adverse possession. He says, however, in his stipulation, that in 1902, prior to his purchase, the defendant had assumed possession of this land in controversy, had moved the fence to the east 18 feet, to correspond with the west line of plaintiff's lot, and that since that time, the city (not the plaintiff) has been in possession of the same, open and notorious and under claim of title.
This is the stipulation of the parties. This we must assume to be the fact. Some evidence has been introduced, however, showing, so far as it is competent, that plaintiff had some conversations with the mayor and members of the city council individually, touching the occupancy of this land by the defendant. He says he knew, at the time he purchased it in 1905, that the defendant was in possession, making some claim to the land.
Some evidence was introduced showing conversations had with the mayor and with the park commissioner and with the city solicitor. This was admitted by the court on the theory, as said by the court, that it tended to show that plaintiff was not acquiescing in the new line, and it was the thought of the court that this evidence was competent for that purpose, but the defendant was not relying upon acquiescence. The burden was on the plaintiff to make his case on the theory alleged by him. On this theory, he stipulated himself out of court.
It seems like a contradiction to hold that the plaintiff can recover on the theory that he has been in continuous undisputed, notorious and adverse possession of the property in...
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