Kelroy v. City of Clear Lake

• Decision Date: 11 August 1942
• Docket Number: 45963.
• Citation: 5 N.W.2d 12,232 Iowa 161
• Parties: KELROY et al. v. CITY OF CLEAR LAKE et al.
• Court: Iowa Supreme Court

5 N.W.2d 12

232 Iowa 161

KELROY et al. v. CITY OF CLEAR LAKE et al.

No. 45963.

Supreme Court of Iowa

August 11, 1942

Appeal from District Court, Cerro Gordo County; T. A. Beardmore Judge. [Copyrighted Material Omitted]

Westfall & Laird and Senneff & Duncan, all of Mason City, and O. J. Kirketeg, of Bedford, for appellants.

E R. Boyle and E. B. Stillman, both of Clear Lake, for appellees.

GARFIELD Justice.

Clear Lake is a city of the second class bordering on a lake of the same name. Plaintiff, Westfall, and defendant, Whitaker, hold title (the validity of which is in question) to the strip in controversy lying between the lake and the lots of the remaining plaintiffs. The lots are numbered 24 to 33 of Whitaker's Replat of Block 3 of Clear Lake. They face the lake and are improved by cottages occupied by plaintiffs. The strip in controversy is 285 feet in length, along the lake. Plaintiff, Kelroy, testified the width varies from about 40 to 47 feet, from the top of the wall along the front of the lots to the high water mark. The wall varies in height from about 18 to 30 inches. Along the outside of the wall is a 6 foot cement walk which has been at all times open to pedestrian traffic and the right of the public so to use the walk is admitted. The strip is a continuation to the north, one block in length, of Lake or First street, which runs along the lake shore.

In about 1897 street car tracks of the Mason City and Clear Lake Railway were laid lengthwise of the strip. Passenger cars ran over the tracks until about 1935. Since abandonment of street car passenger service, about the only use of the tracks has been during the ice harvest in winter. The strip has not been generally used for vehicles since the car tracks were built. Set out on the next page is a map of Whitaker's Replat of Block 3 showing the strip in question, which, however, is now narrower than the map indicates.

In July, 1938, the city planning board recommended to the city council that the strip in question be opened for public use as a street. In February, 1939, the council resolved to improve and open this socalled street for vehicular traffic. After some leveling and graveling, this suit was brought by the property owners against the city and the members of its council, seeking to restrain further improvement or use as a street. Plaintiffs contend the city has no title to the ground; that the city is estopped from using it as a street; that the strip is not suitable for a street, principally because it is too narrow. Following a trial, plaintiff's petition was dismissed and this appeal taken. The city will be referred to as if it were sole defendant.

I. We first consider the legal title to the strip in question. In 1856 Marcus Tuttle and one Dickerson platted the village of Clear Lake. Tuttle, however, owned personally all of the ground now owned by plaintiffs, including the strip in controversy. The ground platted consisted of 16 blocks and a public square, together with streets and alleys. Block 3 was in the northwest corner of the plat, in the same location in which Whitaker's Replat of Block 3 was later situated. (Whitaker's Replat was made in 1900.)

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Lake street shown in the village plat, extended along the lake for six blocks. The part of Lake street lying between Block 3 and the lake is the strip now in controversy. The village plat was duly acknowledged and then recorded pursuant to direction of the county judge. The village of Clear Lake was incorporated in 1871 and Ordinance No. 1, July 11, 1871, accepted the streets and alleys within the limits of the town as dedicated by the original owners thereof, "to be hereafter used and held as such."

The acknowledgment and recording of the plat, together with the subsequent incorporation and acceptance of the streets, were equivalent to a deed in fee simple to the town of the land set apart in the plat for streets or other public use. The applicable statute then in force, section 637, Code 1851, a part of Ch. 41, entitled "Village Plats," provided: "The acknowledgment and recording of such plat is equivalent to a deed in fee simple of such portion of the land as is therein set apart for public use * * *." While the making and recording of a plat constitutes a deed of dedication to the public of the designated streets, it is well settled that such plat does not make them public streets until the public has in some manner indicated its acceptance thereof. Like all deeds, an acceptance is necessary. Bowersox v. Board, 183 Iowa 645, 648, 167 N.W. 582; Christopherson v. Incorporated Town, 178 Iowa 893, 899, 160 N.W. 691; Brown v. Taber, 103 Iowa 1, 72 N.W. 416.

Here, there was such acceptance by Ordinance No. 1. Upon incorporation and acceptance, the village streets became streets of the incorporated town, which held title thereto. Incorporated Town of Ackley v. Central States Elec. Co., 206 Iowa 533, 537, 220 N.W. 315. See, too, McKinney v. Rowland, 197 Iowa 180, 184, 185, 197 N.W. 88; Lake City v. Fulkerson, 122 Iowa 569, 98 N.W. 376; Blennerhassett v. Forest City, 117 Iowa 680, 683, 91 N.W. 1044. The question before us, which was decided in the Incorporated Town of Ackley case, was left undisposed of in Town of Kenwood Park v. Leonard, 177 Iowa 337, 342, 158 N.W. 655, cited by appellants. Further, in the Kenwood Park case there was no acceptance of the streets by the city. The purchasers of lots abutting any part of Lake street took title only to the lot line and not to the center of the street. Blennerhassett v. Forest City, supra; Milburn v. Cedar Rapids, 12 Iowa 246, 252. Appellants' contention that the town never acquired more than an easement in this strip must be rejected. We must hold, therefore, that following July 11, 1871, title to the strip in question was in the incorporated town of Clear Lake.

II. Appellants contend, however, that Block 3 and that part of Lake street between the block and the lake were legally vacated and the town divested of title to the strip in controversy. On September 5, 1876, Marcus Tuttle, the then owner of Block 3, executed and filed for record in Town Plat Book 1, page 59, a paper declaring vacated Block 3 "together with the streets between said Block 3 and the waters of Clear Lake." This paper was also executed by the owners of certain lots in Tuttle's addition which were likewise declared vacated. The record of the original village plat filed in 1851 bears the following indersement both on Block 3 and on the portion of Lake street here involved: "Vacated See Town Plats 59."

On September 6, 1876, Tuttle and the other persons who executed the foregoing vacation made and filed for record a plat of Tuttle's Second Addition to Clear Lake. This plat recites: "Block 3 in the First Plat of Clear Lake village having been vacated by the owners thereof the same ground is hereby replatted as shown herein. * * * Block 3 is in the same position as the former block No. 3 with Lake street vacated between the same and the lake and added to the Block." The map filed as a part of the plat of Tuttle's Second Addition shows no designated street between Block 3 and the lake. On May 1, 1882, the town council passed a general ordinance accepting all the streets, alleys, and public grounds of all additions to the town since the passage of Ordinance No. 1, July 11, 1871, without naming or otherwise referring to any streets or additions.

Appellee city contends the attempted vacation of that part of Lake street here in controversy is of no effect, by reason of section 564, Code 1873, then in force, which provides: "Any part of a plat may be vacated * * * provided such vacating does not abridge or destroy any of the rights and privileges of other proprietors in said plat, and provided further, that nothing contained in this section shall authorize the closing or obstructing of any public highways laid out according to law."

The term "highways" as used in the statute includes streets in cities and towns. "All streets are highways, but all highways are not streets." Chrisman v. Omaha & C. B. Ry. & Bridge Co., 125 Iowa 133, 138, 100 N.W. 63, 65; Sachs v. Sioux City, 109 Iowa 224, 227, 80 N.W. 336; Flemming v. Chicago, D. & M. R. R. Co., 34 Iowa 353, 359. See, also, Hunter v. Des Moines, 144 Iowa 541, 547, 123 N.W. 215. Lake street in 1876 was a public highway laid out according to law and accepted by the town. It was an important street, connecting Main street and North street, other principal thoroughfares.

The foregoing statute not only forbade by a partial vacation the closing of any public streets previously laid out and accepted, but also prohibited a partial vacation, if the rights and privileges of other proprietors would thereby be abridged or destroyed. Where lands are platted into town lots and sold with reference to the plat, the purchasers acquire as appurtenant to their lots, a vested right to use the streets designated on the plat. This right cannot be divested by the owner who made the dedication. A dedication of streets has been likened to a tender, which may not be withdrawn after acceptance on behalf of the public or the accrual of private rights with respect thereto. Burroughs v. Cherokee, 134 Iowa 429, 432, 433, 109 N.W. 876. So, here, Marcus Tuttle could not by a partial vacation, close any part of Lake street nor could he without their consent, divest the owners of the remaining lots in the original village plat of their right to use Lake street. Chrisman v. Omaha and C. B. Ry. and Bridge Company, 125 Iowa 133, 137, 100 N.W. 63; Getchell v. Benedict, 57 Iowa 121, 125, 10 N.W. 321; Yost v. Leonard, 34 Iowa 9; Fisher v. Beard, 32 Iowa 346; Cook v. Burlington, 30 Iowa 94, 6 Am.Rep. 649; Annotation Ann.Cas.1917A,...