O'Malley v. Dillenbeck Lumber Co.

• Decision Date: 11 February 1909
• Citation: 119 N.W. 601,141 Iowa 186
• Parties: O'MALLEY v. DILLENBECK LUMBER CO. ET AL.
• Court: Iowa Supreme Court

141 Iowa 186

119 N.W. 601

O'MALLEY

v.DILLENBECK LUMBER CO. ET AL.

Supreme Court of Iowa.

Feb. 11, 1909.

Appeal from Superior Court, Perry County; W. H. Fahey, Judge.

Action at law to recover damages because of the acts of the defendants in obstructing an alleged public highway. Verdict and judgment for the plaintiff for the sum of one cent, and the defendants appeal. Reversed.White & Clarke and Cook, Loomis & Tourtellot, for appellants.

Shortley & Kelly and J. J. Halloran, for appellee.

WEAVER, J.

On the line of the defendant railway company's road in Dallas county, Iowa, is a small station known as “Bouton.” The railway there extends east and west. The station is on the south side of the track, and immediately west of the platform the railway yard is crossed by the principal street of the village extending north and south. On the north side of the right of way, and immediately west of the north and south street, the railway company owns an additional strip about 125 feet in width and 800 feet in length, the east portion of which, in part at least, has been occupied by the defendant lumber company with its sheds and other conveniences of a lumber yard. Immediately north of the strip above described is a tract of unplatted land owned by the plaintiff, whose residence is upon a lane extending north from the north line of said strip at a point some 40 rods west of the north and south street first above mentioned. Between the lane on which plaintiff resides and said first-mentioned street, where all the business houses are located, there is no direct convenient connecting street or highway, unless it be the one in controversy, which we now undertake to describe. It is the claim of plaintiff that there is a public way 60 feet in width extending along the line between his land on the north and the railway company's premises on the south; the partition line between them being the center of such way. He alleges that the same was established as a public road first by the consent and dedication of himself and the railway company, and that soon thereafter a petition for its establishment by public authority was filed with the county auditor, who appointed a commissioner to view the proposed route and report upon its advisability, and that said commissioner did report in favor of locating and establishing a public road from the main street of the village hereinbefore described extending west along the line between plaintiff's land and the railway strip above described a distance of 54 rods, thence south to connect with a road running east and west on the south side of the railway right of way. He further alleges that, after due service of notice by publication to interested parties, the board of supervisors accepted the dedication and established the proposed road as by consent. This road he alleges the defendants have obstructed by buildings and otherwise thus interfering with his free passage to and from his home and with the comfortable use and enjoyment of his property. The defendants answer jointly denying the allegations of the petition. In giving the case to the jury, the court withdrew from their consideration the matter of the alleged establishment of the road by the board of supervisors.

From this statement it is at once apparent that the question whether there is any evidence in the record to support a finding of the establishment of the alleged road by some act or agreement of dedication on the part of the railway company is of fundamental importance. A reading of the entire record convinces us that in this essential respect the plaintiff's case is fatally deficient. The only evidence presented which is claimed to show any express agreement to dedicate this road as a public way is to be found in an alleged conversation between plaintiff and one Gibson, division superintendent of the railroad at that point, which is said to have occurred about the year 1897. Plaintiff's own testimony on the subject is as follows: “I lived in and about Bouton in 1867, and up to the spring of 1901, when I moved to Perry. Was in a general store business, grain, lumber, and tile business, and did considerable amount of shipping with the railway company and was personally acquainted with the officers of the company that visited that town. ...