Mullahey v. Serra
| Decision Date | 17 December 1935 |
| Docket Number | 43041. |
| Parties | MULLAHEY et al. v. SERRA et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; A. A. Herrick, Judge.
The question here is what is the division line between two adjoining lot owners in the city of Des Moines. It arose in equity in an action to restrain the defendants from constructing a fence upon what the plaintiffs claim is their property, and to determine the proper division line between the properties. The plaintiffs allege that the true line is a line mutually agreed upon and acquiesced in by the adjoining lot owners for a period of nearly fifty years. The trial court found for the plaintiffs, and the defendants appeal.
Affirmed.
Haemer Wheatcraft and James W. Wilson, both of Des Moines, for appellants.
H. H Griffiths, of Des Moines, for appellees.
Hillside avenue and Hartford avenue are two public streets in the city of Des Moines. They are 264 feet apart. The ground between these two public streets is crossed at an angle by Indianola road. Lot 19, according to the official plat, is 163.5 feet wide and extends through from one street to the other. It is east of Indianola road and separated from Indianola road by lot 20. There are no cross streets for a considerable distance east. John Carey, through whom the plaintiffs appellees claim, acquired the east half of the west half of lot 19, in the year 1885. About the same time, he constructed fences running north and south the full distance between the two public streets as a means of inclosing the ground which he purchased. He then erected a dwelling thereon, and he and his grantees, the plaintiffs herein, have been in continuous possession since that time, occupying up to the lines on which the fences were constructed. The defendants appellants are the owners of the west half of the west half of lot 19 and claim through a contract of purchase from the heirs of Dan Hunter made in 1930. Dan Hunter acquired the property in 1886, and lived there continuously until his death in 1918. Dan Hunter occupied up to this fence and treated the fence as the boundary between these properties during his lifetime. Those claiming through him so occupied until the present controversy arose. For convenience, the property of the plaintiffs appellees will be referred to as the Carey property, and that of defendants appellants as the Hunter property.
Where the line between these two properties as above described would be established by a complete and competent survey does not satisfactorily appear from the evidence. A survey shows that there is a surplusage of ground between Indianola road and the intersection on the east. This surplus amounts to about five feet on the north side of this tract of ground so that if measurements be taken from Indianola road a different point will be arrived at as the division line than if measurements be taken from the street intersection on the east. It is apparent, also, that if this surplusage were equally divided among the lot holders, the width of the lots would be more than shown by the recorded plat. No effort was made by either party to arrive at the line by means of measurement from the east or by apportionment of the excess. It appears, however that after the official plat was made that Indianola road was widened by some 14 feet and that substantially one-half of this was taken from the east side thereof which would be from lot 20. It further appears that the survey which defendant had made was from the east line of Indianola road as widened and that it is based on the assumption that lot 20 is now as wide as shown by the original official plat. Under these circumstances, it is impossible to say from the record in this case where the true line as shown by a survey ought to be between lot 19 and lot 20. Much less is it possible from the survey to determine the line between the two tracts...
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