Henry Walker Park Ass'n v. Mathews

• Decision Date: 28 July 1958
• Docket Number: No. 49469,49469
• Citation: 91 N.W.2d 703,249 Iowa 1246
• Parties: HENRY WALKER PARK ASSOCIATION, a Corporation, Plaintiff-Appellee, Fremont Township, Johnson County, Iowa, and Fay Musser, Frank Sherburne, and Alton Wolford, Trustees of Fremont Township, Johnson County, Iowa, Intervenors-Appellees, v. Effie Shellady MATHEWS, Gilbert E. Mathews, and Marsh E. Mathews, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 703

91 N.W.2d 703

249 Iowa 1246

HENRY WALKER PARK ASSOCIATION, a Corporation, Plaintiff-Appellee Fremont Township, Johnson County, Iowa, and Fay Musser, Frank Sherburne, and Alton Wolford, Trustees of Fremont Township, Johnson County, Iowa, Intervenors-Appellees, v. Effie Shellady MATHEWS, Gilbert E. Mathews, and Marsh E. Mathews, Defendants-Appellants.

No. 49469.

Supreme Court of Iowa.

July 28, 1958.

William H. Wellons, Muscatine, and F. J. MacLaughlin, Davenport, for defendants-appellants.

Edward L. O'Conner, Iowa City, for plaintiff-appellee.

Edward F. Rate, Iowa City, for intervenors-appellees.

THOMPSON, Justice.

The village of River Junction in Johnson County was platted in 1873, by Henry Walker and others. All of the land involved in the present controversy was then owned by Henry Walker. River Junction can hardly be said to have reached the status of a 'ghost town', since a ghost is defined as the disembodies spirit of a deceased person; necessarily someone who was once alive. There were, however, a few buildings, a post-office, and until about 1936 a railroad station. The post-office departed with the railroad station, and a Methodist church building, while still standing, seems now to have been out of use for several years.

The controversy here centers around Block 2 of the original plat, and Front Street, which bounded Block 2 on the south. On July 14, 1910, Henry Walker, a venerable and highly respected citizen of Johnson county, with his wife, deeded to the Trustees of the Henry Walker Park Association all of Lots 1, 2, 3, 4, 5, and 6 in Block 2, except for the west 13 feet of Lots 3 and 4; and all of Oak Street, which bounded Block 2 on the east. On December 30, 1910 the same grantors conveyed to the same grantees the west 13 feet of Lots 3 and 4, in Block 2, except the west 3 feet thereof, and the north one-half of Front Street along the south boundary of the park. At the time of the first conveyance there was no corporation having the name Henry Walker Park Association in existence; but evidently a voluntary association with the same name was formed for the purpose of receiving and caring for the park. On August 25, 1910, a corporation not for pecuniary profit was formed and duly chartered. No conveyance of the park lands deeded by Henry Walker and wife on July 14, 1910, from the voluntary association to the corporation was ever made; and the first error urged by the defendants is that the corporation has no interest in the park and is not the real party in interest in this action.

I. The defendants-appellants concede that when a corporation is formed to take over the property of a voluntary association no conveyance is necessary, if the action is taken by unanimous consent of all the members of the association. Red Polled Cattle Club of America v. Red Polled Cattle Club of America, 108 Iowa 105, 109, 78 N.W. 803, 805. But they say evidence of such consent is entirely lacking here. We do not agree. The corporation has been in existence for some forty-six years, without any protest from any member of the Association. As said in the Red Polled Cattle case, supra: 'While all did not vote for it, none voted against it, and, in pursuance of the adoption of the resolution, its purpose was carried out by an incorporation without objection and with the full purpose clearly known.' While there was no resolution of transfer here, the evidence sufficiently shows that the property was taken over and has since been managed by the corporation, without protest.

It is true the affairs of the corporation were handled quite informally, and perhaps the same minute book which was originally opened by the association has been used by the corporation without any clear line of demarcation. Some confusion also arises because the managing officers of the association were apparently trustees, and the articles of the corporation provide that its affairs were to be conducted by three trustees. But generally the evidence shows that it was the corporation which was in charge. Our conclusion on this point is the same as that of the defendant Effie Shellady Mathews, who with her husband claims title to Front Street and to what is known in the record as the 'parking lot', the two items of realty around which this litigation centers. On June 21, 1956, she caused to be printed in a newspaper, the Lone Tree Reporter, a notice that she was the owner of the park real estate conveyed by Henry Walker and wife in 1910. She explains this in her testimony by saying she was informed that after fifty years--the length of the life of a non-profit corporation under Iowa statutes--the park would revert back to Henry Walker's heirs. She had procured deeds from the other heirs. The notice which she published referred to the corporation; and, while her advice on the legal aspect of the matter proved erroneous, as she now concedes, it does clearly appear that she herself thought it was the corporation which was holding the title. We agree with her in this latter conclusion.

II. The real fighting points in the case turn upon questions of dedication of Front Street and of the parking lot. Block 2 in the original plat of River Junction was bounded on the north by Main Street, on the east by Oak, on the south by Front, and on the west by Church. Lots 1 to 6, inclusive, comprise slightly more than one-half of the block, extending from Oak Street west. The plat shows this tract to be 180 feet in width. It is these lots, excluding the westerly three feet thereof, and including Oak Street, which were conveyed to the Henry Walker Park Association and are still owned by it, Effie Shellady Mathews having by her testimony abandoned any claim to them. West of the six lots above described the plat shows a strip apparently intended to be an alley, and west of it 160 feet which was not divided into lots. The north part of this tract, from Church Street on the west to the park property on the east and extending from Main Street on the north to a line 109 feet north of Front Street is occupied by the Fremont Township Cemetery. South of the cemetery the land running south to Front Street and extending 60 feet east from Church Street is owned in part by the Methodist Church and in part by one Rayner. This leaves, east of the church and Rayner lands, south of the cemetery, west of the park, and north of Front Street a rectangular tract said by some of the witnesses to be about one-half acre in extent, which is the paking lot involved here. The civil engineer who testified said the south cemetery line is 109 feet north of Front Street. The width from the west line of the park to the east line of the church and Rayner lots is 124 feet; so that the parking lot is 109 feet north and south by 124 feet east and west.

The defendant Effie Shellady Mathews is a granddaughter of Henry Walker who at one time owned all the real estate involved here and who platted the village of River Junction. Upon his death in 1911 he left a life estate in his remaining lands to his daughter, Mary H. Shellady, with remainder over upon her death to her children, of whom Effie Shellady Mathews is one. She and her husband, the defendant Gilbert E. Mathews, are now the owners of title to such realty as Henry Walker had at the time of his death, including much of the land surrounding Block 2. Marsh E. Mathews is their son, and is apparently made a defendant because he has been active in the matters which have brought about this lawsuit.

The park association has at times been active and at others somewhat dormant. The park is improved with two buildings, and picnics and other outdoor activities have been held there from time to time, including Old Settlers' picnics. The park is surrounded by a fence. For many years there was a gate on the south side of the park opening from Front Street; but some time before the trial this gate was moved to the west fence, opening from the parking lot. The engineer said the gate is 10 feet wide and is 17 feet north of the southwest corner of the park. On the east of the park is agricultural land. Main Street lies on the north, and the defendant Marsh E. Mathews testified access to the park might be had from it, although he says it would be by sufferance and 'If I choose to, I could withdraw the permission at any time.'

In October or November, 1956, the defendant Marsh E. Mathews, acting for himself and the other defendants, built a fence about 63 feet east of the west line of Block 2, from the south line of the cemetery fence southerly across Front Street. This fence is about 3 feet east of the church and Rayner properties. It effectually closes Front Street east of the fence, and shuts off access to the parking lot, and to the park through its main gate. It also prevents access to the cemetery from the south, since the only way of reaching it from that direction was by coming along Front Street from the west to the parking lot, then traveling northerly across the lot to the large gate which the engineer locates in the south fence line of the cemetery 100 feet east of the west line of Block 2. This gate is in reality three gates: a large center gate 10 feet wide, flanked by two 4-foot gates. It was installed in 1914 by Louisa Cray as a memorial to her father, David Sweet. It is the only entrance to the cemetery large enough to admit a hearse or other vehicle. There is a small 4-foot gate on the west side of the cemetery.

III. Two major questions arise with regard to the use of Front Street, and of the parking lot. We shall deal first with the issue concerning Front Street. This street was formally dedicated to public use by the original plat of River Junction. 'The filing of a plat * * * is the tender of an easement, in the land set aside for streets, to an unincorporated village.' Town of Kenwood Park v. Leonard, 177 Iowa 337, 343, 158 N.W. 655, 659.

It is true, as appellants urge, there must be an acceptance of the platted...