Patrick v. Cheney
| Decision Date | 04 April 1939 |
| Docket Number | 44393. |
| Citation | 285 N.W. 184,226 Iowa 853 |
| Parties | PATRICK v. CHENEY et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Mills County; Ernest M. Miller, Judge.
Suit to quiet title to narrow strip of ground. Decree for appellee.
Affirmed.
Whitney Gillilland, of Glenwood, for appellant.
Genung & Genung, of Glenwood, for appellees.
This suit involves conflicting claims of title by appellant and appellee to a strip of ground, about four feet in width lying in what was once platted as a street. The plat is known as the first addition to the Town of Emerson, Iowa. It was filed April 17, 1874, by L. W. Tubbs, who then owned the real estate affected thereby. According to the plat, Bradford Avenue was sixty feet wide and extends west from Edwards Street. Lot 1 of block 9 faces the west side of Edwards Street, and lies immediately south of Bradford Avenue. Lot 6 of block 4 lies immediately north of Bradford Avenue, west of Edwards Street.
Appellee owns lot 1 of block 9, and claims title to the south 19 feet of Bradford Avenue for the length of said lot 1. Appellant owns the strip of Bradford Avenue immediately north of appellee's strip. Appellant claims that appellee's strip is only 15 feet wide and that he owns the north four feet of the south 19 feet of Bradford Avenue. Each party prayed for a decree in his favor quieting title to said four foot strip. The trial court's decree was for appellee. Appellant has appealed therefrom to this court.
The appellant claims that Bradford Avenue west of Edwards Street was never accepted by the town as a street, was not opened and was not used by the public for travel, and therefore, the town did not acquire title to the street, so that the original owner Tubbs had the right to convey the fee thereto.
On January 7, 1892, Tubbs did undertake to convey the title to that part of Bradford Avenue lying between lot 1 in block 9 and lot 6 in block 4 to one Griffith and one Bruen. On April 9, 1892, Griffith conveyed his interest to Bruen. While Bruen claimed to be the sole owner of the street, he built a fence parallel to and 15 feet north of lot 1, block 9. On October 4, 1898, Bruen conveyed to H. B. Cheney the " nineteen feet, more or less, of the land lying north of Lot 1, Block 9, up to and including the fence as it now stands." Appellee is the devisee of said H. B. Cheney, who died in September, 1934. Appellant concedes that appellee now holds whatever title said decedent held to said strip, but claims that, under the above description, appellee's title extends only to the fence, which was but 15 feet north of said lot 1.
On February 12, 1908, Bruen conveyed lot 8, block 9, (lying west of lot 1, block 9) to one Eaton and also quitclaimed to Eaton all of his interest in Bradford Avenue between lot 1, block 9, and lot 6, block 4. On February 23, 1910, Eaton conveyed such property to appellant. Appellant bases his claim to the four foot strip here in dispute on this conveyance. He also claims title thereto because of acquiescence and adverse possession.
Appellee claims that the deed from Bruen to Cheney conveyed the south 19 feet of Bradford Avenue even though the fence was but 15 feet north of lot 1, block 9. Appellee also claims that Bradford Avenue was accepted by the town, was opened and used for public travel, so that the town acquired the fee title to said street. Appellee relies upon an ordinance of the Town of Emerson adopted May 7, 1901, which vacated Bradford Avenue between lot 1, block 9, and lot 6, block 4, and conveyed the north ten feet of the street to one Coppage (then owner of lot 6), the south 19 feet to H. B. Cheney, and the intervening 31 feet to Bruen. Appellee also introduced in evidence the deed from the town of the south 19 feet of Bradford Avenue theretofore vacated by said ordinance. He also claims title to the four foot strip because of adverse possession.
The evidence introduced on the issue of the dedication acceptance, opening and use of Bradford Avenue by the town prior to its vacation is vague, indefinite and subject to conflicting inferences. If, as appellant claims, the street was not accepted, opened or used by the public, the town did not acquire title to the fee, had nothing to vacate, and had no power to convey the fee to the grantors of appellant and appellee. Brewer v. Claypool, 223 Iowa 1235, 275 N.W. 34.Appellee's claim to the record title of the disputed strip would then be limited to that based upon Bruen's conveyance of " nineteen feet more or less of the land lying north of Lot 1, Block 9, up to and including the fence as it now stands." We are inclined to the view that, since the fence was but 15 feet north of lot 1, block 9, the deed conveyed only a 15 foot strip. However, we would still have to determine appellee's claim to the four foot strip, based on alleged adverse...
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