Getchell v. Benedict
| Decision Date | 25 October 1881 |
| Citation | 10 N.W. 321,57 Iowa 121 |
| Parties | GETCHELL AND ANOTHER v. BENEDICT. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Polk circuit court.
Action for the abatement of a nuisance committed in obstructing, by a fence, a public highway, and to recover damages resulting therefrom to plaintiffs. There was a verdict and judgment for plaintiffs. Defendant appeals. The facts of the case, so far as they are involved in the questions ruled by the court, appear in the opinion.Harvey & Lehman, for appellant.
Clark & Connor, for appellees.
1. The petition alleges that plaintiffs are the owners of lot 11, block 2, of Savery's Park addition to the city of Des Moines, upon which there are three buildings and other improvements; that north and west of the lots are highways opened and dedicated to the public by Lyon, the grantee of Savery, long before the latter acquired the property and platted it as an addition to the city; that the street west of plaintiffs' property was called Railroad street, and the dedication thereof was accepted by the city, and work was done and repairs and improvements were made by the city upon that part of the street adjacent to plaintiffs' property; that the public have continuously used the street as a highway for more than 20 years, and for more than 10 years prior to filing the plat of Savery's Park addition, and that Savery knew when he acquired the property of the dedication of the land as a highway, and that it had been used by the public for the time above stated. It is further averred that Savery, by his acts and continued recognition of the highway, is estopped to deny its existence. It is alleged that defendant has obstructed Railroad street by erecting a fence thereon, and by enclosing a portion thereof adjoining plaintiffs' property, and that defendant still maintains the obstructions, to the damage of plaintiffs.
The answer of defendant denies that Lyon ever dedicated or opened the streets in question, and avers that Lyon sold to the M. & M. Railroad Company the land which is described as Savery's Park addition, of which the reality in controversy is a part, and that he platted the land adjacent thereto; and Railroad street, as platted by Lyon, is wholly upon the land adjacent to Savery's Park addition, and is not upon that addition. It is alleged that the land in controversy had been at all times claimed as private property, and that in 1864 Savery purchased from Lyon the tract conveyed, and platted it as an addition to the city. The land in controversy, upon which plaintiffs claim Railroad street is located, is not covered by a street according to Savery's plat, but constitutes a lot. It is shown that this plat was filed in 1870, and it is averred that the city has never claimed that a street exists upon the land, which is unenclosed and has been taxed each year as private property.
2. The evidence tended to show that Lyon in 1853 executed a deed for a tract of land to the M. & M. Railroad Company for depot grounds. The deed is upon condition that if depot buildings should not be erected upon the property within three years the lands conveyed should revert to Lyon. The highway in question is upon this land. The railroad company never erected the depot buildings contemplated in the conditions contained in the deed executed by Lyon. It is not denied that the title reverted to Lyon. In 1858 Lyon filed a plat of the land adjacent to this tract as an addition to the city. The land so platted was upon the east, north, and south of the depot grounds, but did not cover it. The land in controversy, being a part of the depot grounds, is not covered by the plat filed by Lyon. The depot grounds were sold by Lyon to Savery in 1864 or 1865. The evidence tends to establish a dedication of the land in question to the public for the purposes of a highway, by Lyon, before Savery acquired the title, and that the street was improved by the city and was continusly used by the public until it was obstructed by defendant. Other facts need not be stated, as they are not essential to an understanding of the questions of law presented by the case.
3. The defendant's counsel do not dispute the correctness of the instructions given to the jury relating to the proof required to establish the dedication in pais of land for the purposes of a highway, but they insist the instructions were not applicable to the case for this reason: Lyon appropriated the land to the public by the plat which was filed in pursuance of the statute. It is not competent to establish another or different dedication of the same land by parol declaration or acts in pais. The proposition of law announced by counsel may, for the purpose of this case, be admitted. But the record does not disclose the fact to which it is applied in counsel's proposition. The land in question was not covered by the plat filed by Lyon; he made no...
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