Hart v. Worthington

• Decision Date: 16 December 1947
• Docket Number: 47123.
• Citation: 30 N.W.2d 306,238 Iowa 1205
• Parties: HART v. WORTHINGTON et al.
• Court: Iowa Supreme Court

30 N.W.2d 306

238 Iowa 1205

HART v. WORTHINGTON et al.

No. 47123.

Supreme Court of Iowa

December 16, 1947

Appeal from District Court, Ringgold County; George A. Johnston Judge.

Grant L. Hayes, of Mount Ayr, for appellant.

Emmet R. Warin, of Mount Ayr, for appellees.

BLISS Justice.

On March 16 1887, Jerry Shay and wife executed to the Chicago, St. Paul & Kansas City Ry. Co. in consideration of the location of a station and railway depot on Sec. 22, Twp. 68, Range 31, a warranty deed conveying to the grantee all that part of the real estate lying within 50 feet of and at a right angle to the center line of the railway over and across section 22 and extending a further 100 feet between stations 4519 to 4539, a distance of 2000 feet. Later this railway line became a part of the Chicago Great Western R. R. Co. The town of Maloy was laid out in said section. The track and right of way as surveyed and improved extends in a southwesterly-northeasterly direction.

To aid in the statement of the contentions of the parties and of the evidence, and for the convenience of the reader, we set out a plat, not drawn to scale, and improvised from exhibits and testimony:

RPT.CC.1948104906.00010

(Image Omitted)

Due north is toward the upper left-hand corner. The parallel lines, 7-8, are the main track. The three numbered parallel lines intersecting the track represent an east-west public highway, sixty-six feet wide, of which line 2-1 is the north highway line, line 3-4 is the center of the highway and is also the east-west quarter section line, and line 5-6 is the south boundary of the highway. The perpendicular line x-v, partly broken and partly solid, represents the west boundary line of the right of way, and was surveyed as 150 feet west of and parallel to the center line of the track. The east line of the right of way is 150 feet east of and parallel with the center line of the track. It is not shown on this plat. The quadrangle, just westerly of the track, with three dimensions marked with broken lines and the southerly line solid, is mentioned in plaintiff's argument as representing a tract leased for lumber-yard purposes, but there is no evidence in support thereof. And if it ever was so improved the improvements have disappeared, for said tract has been agricultural land during all times pertinent to matters herein involved.

In 1898 Shay sold to Mrs. Minor Sams an irregular tract, supposed to contain one acre, in the southeast quarter of the northwest quarter of sect. 22. It is described in the County Auditor's office as Lot 1 in said forty acres. The County Surveyor surveyed the lot on the ground and made a plat thereof, which is on file in the County Recorder's office. The calls of the survey are: 'Commencing at a stone ('C' in our plat herein) on the east and west center line of said section 22 a distance of 178.20 feet west from the center of the track of the Chicago Great Western Railway, thence west on a variance of nine degrees twenty minutes 49.2 feet to a stone ('D' on within plat), thence north seventy degrees, twenty four and one-half minutes east 332.64 to a stone ('A' on within plat), thence east (214 feet, 2 inches) on a variance of nine degrees twenty minutes to a stone ('B' on within plat) in west boundary of right of way and thence south thirty two degrees twelve and one-half minutes west along right-of-way 389.4 to place of beginning. ('C')'

On the within plat the survey just noted describes the quadrangle C D E A B F C or Lot 1, of which the part E F C D was in the highway and not enclosed. The east line of the enclosed portion is the broken line B F.

The plaintiff testified that in 1899--he was then eighteen years old and living in or about Maloy--Sams fenced Lot 1, that is he built an ornamental metal and iron fence easterly along the north line of the highway, but there is no evidence as to how far east it was built. It is no longer there and the only evidence remaining is part of the west iron post. Sams at that time also built a wire fence on the west line (E A) of Lot 1, and on the north line east from 'A' but he did not stop at 'B' on the west right-of-way line, but continued on easterly a distance of five feet three and one-half inches beyond 'B' to 'L,' where the northeast corner post of the lot was placed. Plaintiff concedes this. He testified: 'The line from 'A' to 'B' represents the survey of record and the letter 'L' represents the location of the corner. I would say that Minor Sams put the corner post at 'L.' Myrtle Sams took title to the property in November, 1898.'

There is no definite evidence in the record that the northeast corner post of Lot 1 has ever been at any other place than at 'L.'

With 'L' as the corner post--and the County Surveyor probably marked that spot with a stake--there is no evidence just where Sams placed his east line fence. Certainly, with that starting point, if the survey call for the east line was followed the lower terminus could hardly be at 'F' or 'C.'

The land in controversy herein, the possession of which the plaintiff seeks, is the wedge-shaped elongated quadrangle described by the letters B L J F, the west line of which is broken and the east line is unbroken. The north end, B L, is approximately five feet four inches, the west side, B F, 350 feet, the east side, L J, a little less than 350 feet, and the bottom or south side, F J, is twenty one feet eleven inches.

Mr. and Mrs. Sams sold Lot 1 to Mrs. Hannah Lambert in 1913. The lot was improved with the customary buildings--a house, barn, corn crib, granary, chicken house and other outbuildings. Whether these improvements were made by Sams or Mrs. Lambert does not appear, but they were there while she lived there. In 1916 Mrs. Lambert built a garage. Its location is indicated by the oblong rectangle just north of the highway and westerly from 'J' on our plat. A line divides this figure into two parts. The lower part represents the garage built in 1916, and the upper part a coal house built about 1942. The location of neither part has ever been changed.

Roger Warin, a lawyer, nor living in Des Moines, was reared in the country near Maloy. After he had completed the country school course, he attended the Maloy High School for the years 1919 to 1923, inclusive. While doing so he lived in the home of his grandmother, Hannah Lambert, on Lot 1. He was very familiar with the buildings and the grounds. It was his job to do the usual chores. He was a witness for defendants. He testified to the location of the garage--a building 10 feet 3 inches wide and 16 feet long--as being during those and preceding and succeeding years at the same place where it is now. The entrance to the garage was at the south end and opened directly onto the highway. At the rear of the garage an ordinary door three or four feet wide opened from the north end just east of the northwest corner about a foot. During those years the east side of Lot 1 was enclosed by a fence, the north end of which was at the spot marked by 'L' and extended southerly in a straight line down to and past the east side of the garage and was fastened to a 2X4 nailed to the east side of the garage at about the point 'J'. The northeast corner of the garage was about 2 or 3 feet from the fence. He often raked leaves from the acute angle formed by the fence and the garage, and chased chickens in there and caught them for his grandmother. There were trees, shrubs, and vines north of the garage and along this fence, and also a garden. He testified that this right-of-way fence above described, during those years ran approximately where the present fence is. He identified a picture of his two sisters taken north of the garage in 1922, showing the northeast corner and the trees and bushes growing near. Defendants' counsel says that it shows the fence. The vegetation makes the identification of any fence difficult.

Hannah Lambert died in 1932 and her daughter Rose Lambert succeeded to the ownership of the property. There appears to have been no change in the use of the property during her occupancy.

In the fall of 1898, plaintiff's father bought the Shay farm. Plaintiff was born and reared near Maloy. He attended Drake University and the University of Missouri and is a practing lawyer in St. Louis. He acquired the home place of his father in 1920. It runs along the north side of Maloy west of the Great Western right-of-way, and 120 acres is in the town. He has operated the farm directly or by tenants ever since and has been a frequent visitor in the town and vicinity during the years. On May 14, 1940, he leased from the railway company a portion of the right of way west of the tracks north of the highway, including that east of the Rose Lambert property. The lease was for five years with the right of the lessee to continue the leasehold interest thereafter unless terminated as provided in the lease. He has occupied the leased property since that time. He testified that under the terms of the lease he was required to keep up the railroad right-of-way fence and be responsible for any animal killed by escaping through the fence.

In May, 1940 plaintiff replaced the old fence on the east line of the Rose Lambert place so that the livestock he was pasturing along the right of way would not get onto her property. He testified: 'I made the change in that fence by running it from the northeast corner of the Worthington lot (the Rose Lambert lot) to the east side of the garage where I connected it with the fence that went east from the garage at that point.' In other words he built the new fence along the line 'L' to 'J' on the within plat. The north corner post was placed where Sams had located it in 1899, and the entire fence was where Roger Warin said...