Hunter v. City of Des Moines
| Decision Date | 19 November 1909 |
| Citation | 123 N.W. 215,144 Iowa 541 |
| Parties | GEO. C. HUNTER ET AL., Appellants, v. THE CITY OF DES MOINES IN POLK COUNTY, IOWA |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
SUIT in equity to restrain the defendant from opening and using a part of Thirty-Eighth Street. There was a decree for the defendant, from which the plaintiffs appeal. Affirmed.
Decree affirmed.
W. C Strock and Samson & Noble, for appellants.
R. O Brennan, J. M. Parsons and F. D. Williams, for appellee.
Mr. C C. Lane was at the time of his death the owner of certain land in the city of Des Moines, which was designated as lot fifteen, in Burnham & Lazenby's subdivision, of the west one-half of the northeast one-fourth and the east one-half of the northwest one-fourth of section six, township seventy-eight, range twenty-four. After the death of Mr. Lane, his widow, Eva R. Lane, brought an action for the partition of the land in question and other lands, making all of the children and heirs of her husband defendants therein. A decree of partition was entered in said action on the 13th day of May, 1898, which disposed of the land in question in the language following:
That as to the ten-acre tract (more or less) described as lot fifteen (15), in Burnham and Lazenby's subdivision, of section six (6), of township seventy-eight (78) north, of range twenty-four (24) west, of the 5th P. M., by consent of parties the same is hereby partitioned and shares allotted as follows: A plat of the same is hereunto attached and made a part of this decree, showing an extension of Thirty-Eighth Street through the center of said tract running north from the south line of the tract, fifty (50) feet in width to the intersection of University Avenue, and also extending Cottage Grove Avenue from the east line of said tract where said avenue now abuts upon the tract, through the said tract to the west line thereof, sixty-six (66) feet in width, which extensions of streets are hereby established and dedicated to the public use for the mutual benefit of the parties, and by their mutual consent. That the title to the west half of said tract (less the streets dedicated) and marked 'B-B' on the plat is hereby vested in and partitioned to the following six children of C. C. Lane, deceased, to wit: Helen L. Summers, made defendant by the name of Nellie Summers, Jed B. Lane, Edna E. Lane, Emerson L. Lane, Arthur C. Lane and Edmund M. Lane, each being entitled to an undivided one-sixth thereof. That the east half of said tract (less the streets dedicated), marked 'A-A' on the plat, is hereby decreed as the share of said tract inuring to the plaintiff Eva R. Lane, and her two minor children, Howard C. Lane and Carl R. Lane, an undivided one-sixth to each of the said children and the undivided two-thirds to the plaintiff, Eva R. Lane.
The plat referred to in the decree showed the extension of Cottage Grove Avenue through the tract east and west and the extension of Thirty-Eighth Street through the tract north and south. The plat also showed that the tract was divided into four parcels; the two parcels on the east of Thirty-Eighth Street north and south of Cottage Grove Avenue being marked "A," and the two parcels on the west of Thirty-Eighth Street being designated "B." The two east parcels which had been awarded by the decree to Eva R. Lane and her two minor children were thereafter sold in accordance with the decree, and the same were bought by the plaintiffs, H. C. Wallace and George C. Hunter, who received the referee's deed conveying to them the east one-half of said lot fifteen. A few days after the execution of the referee's deed, Eva R. Lane, for herself and as guardian of her two minor children, also executed a deed to said plaintiffs conveying to them the east one-half of lot fifteen, subject to the streets therein. In 1900 H. C. Wallace and George C. Hunter conveyed parts of the east one-half of the lot recognizing in said conveyance Cottage Grove Avenue as the north and south boundary of the respective parcels conveyed by them. In 1903 George C. Hunter conveyed to the plaintiff Heilman the "east half of the south half of so much of the said lot fifteen as lies north of Cottage Grove Avenue and east of the premises designated upon the said plat as Thirty-Eighth Street." Conveyances were made of the west one-half of lot fifteen, which in most instances excepted the streets designated in the partition decree. On the 4th of February, 1907, the city council of Des Moines passed a resolution accepting the extensions of Cottage Grove Avenue and Thirty-Eighth Street as made in the decree of partition of May, 1898, and in said resolution directed the board of public works to open said streets for the use of the public. On the 27th day of February, 1908, the owners of the several parcels of lot fifteen executed a deed vacating all of the plat made by the partition decree, excepting only so much thereof as is occupied by the extension of Cottage Grove Avenue.
The controversy in this action is over the extension of Thirty-Eighth Street. The appellants rely upon the propositions that the plat in the decree of partition is void for uncertainty, and because not made in compliance with the statute relating to town...
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