Palmer v. Clark

• Decision Date: 10 October 1901
• Citation: 87 N.W. 502,114 Iowa 558
• Parties: PALMER v. CLARK ET AL.
• Court: Iowa Supreme Court

114 Iowa 558

87 N.W. 502

PALMER

v.CLARK ET AL.

Supreme Court of Iowa.

Oct. 10, 1901.

Appeal from district court, Ringgold county; W. H. Tedford, Judge.

On application of plaintiff, the defendants were enjoined from opening a road. At hearing on the merits, the writ of injunction was dissolved, and plaintiff appeals. Affirmed.A. I. Smith, for appellant.

Fuller & Fuller, for appellees.

LADD, J.

Under the Code of 1897, all the evidence to be considered by this court must be included in the abstracts. The office of certification of the record, or of a transcript, is solely to settle disputes developed in printing the record, save when an original paper or document is to be inspected. Hoyt v. Beach (Iowa) 85 N. W. 755. This purpose being accomplished, neither counsel nor court may resort to either in argument. A general denial will not raise an issue or present a dispute to be decided. To do this the denial must point out as specifically as the case will permit the defects alleged to exist. See section 4118, Code; Sup. Ct. Rule 22; McGillivary v. Case, 107 Iowa, 17, 77 N. W. 483. Our investigation, then, must be limited to the printed record, and appellee will not be followed in his argument to the transcript.

2. For many years prior to March 1, 1896, the plaintiff was owner of the S. 1/2 S. E. 1/4 section 18, and the N. 1/2 N. E. 1/4 section 19. On that day he conveyed the latter parcel to defendant Clark. Several years before, a highway 40 feet wide had been established by his consent along what was supposed to be the section line, a point 80 rods west of the northeast corner of section 19 to the center. The true location of this line, however, has been in dispute from the time of the conveyance to Clark, and in 1897 he filed a petition with the county auditor praying that a road be established on the government line between said sections, commencing “1/4 mile west of the northeast corner of section 19-70-30, and running thence west on section line between sections 18 and 19, 1/4 mile, and terminating 1/2 mile west of” said corner. The commissioner appointed by the auditor, without survey or plat, filed a report recommending that the road be opened; and the board of supervisors, on final hearing, granted the petition on payment of costs by petitioners, but without damages. From this conclusion the plaintiff took an appeal to the district court, where his damages were assessed at $30 and accepted by him. That tribunal was limited in its investigation to ascertaining the damages to be allowed. Pollard v. Dickinson Co., 71 Iowa, 438, 32 N. W. 418;Abney v. Clark, 87 Iowa, 727, 55 N. W. 6. Nevertheless, in pursuance of timely advice of the court and the condition contained in its order, that the “further expense of a survey, if necessary to exactly locate said highway, before the same shall be considered as legally established,” be paid, the county surveyor made a careful survey of the road as ordered, and reported the same, with plats and field notes, to the board of supervisors, by which body it was “ordered recorded and platted in record of highway.” The road supervisor attempted to open up the road according to this survey, and was enjoined in this action.

3. The mere omission of the commissioner to survey and plat the road to be established did not invalidate the proceedings. It is only when “the precise location cannot be given otherwise” in his...