Quinn v. Baage

• Decision Date: 16 December 1907
• Citation: 114 N.W. 205,138 Iowa 426
• Parties: QUINN v. BAAGE ET AL.
• Court: Iowa Supreme Court

138 Iowa 426

114 N.W. 205

QUINN

v.BAAGE ET AL.

Supreme Court of Iowa.

Dec. 16, 1907.

Appeal from District Court, Monona County; Frank R. Gaynor, Judge.

Action to enjoin defendants, who are road supervisors and township trustees, from removing a certain fence claimed by them to be in the highway but alleged by plaintiff to be on the boundary between it and his land. Defendants prayed that plaintiff be restrained from interfering with the removal of the fence. The petition was dismissed, and decree entered for defendants as prayed. The plaintiff appeals. Affirmed.

Weaver, C. J., dissenting.

C. R. Metcalf, for appellant.

S. D. Crary, for appellees.

LADD, J.

The plaintiff acquired title to the N. W. 1/4 of section 16 in township 85 N. of range 43 west of the fifth P. M. in November, 1900, and since then has resided thereon. The fence along the north side is near the section line, six feet south of it at the east end, and one foot at the west end, and is substantially where it or fences replaced have stood for 30 or 35 years. Prior to 1894 there had been some travel along the north line of section 16 ever since it had been fenced, but not in any beaten track nor within the ordinary boundary of a highway, as the section to the north was not fenced and the main thoroughfare extended diagonally across the southwest quarter of section 9 to its western boundary and then on to the north. The land appears not to have been cultivated, and the travel was not such as to mark it with any degree of certainty as a highway. There was some testimony to the contrary, but the court might well have found as stated. The evidence is such that we are not justified in interfering with its conclusion. The parties stipulated: That the highway in question, to wit, the “change in the Mapleton & Smithland Road” commencing at the southeast corner of the southwest quarter of section 9, township 85, range 43, Monona county, Iowa, running thence west on said section line 160 rods, and thence north on the west section line of said section 9 to intersect with old Mapleton & Smithland Road, vacating and changing that part of the said Mapleton & Smithland Road running diagonally through said section 9 from northwest to southeast, was duly and legally established by the board of supervisors of Monona county, Iowa, during the month of June, 1894, and that no reference as to the width of the said highway was made in any of the proceedings to establish the said highway, and that the records in said proceedings to establish said highway show that the lands for said highway purpose were donated by the respective landowners on each side of the said highway. It was also stipulated that the records of the county auditor did not show that the plat and field notes of said highway, recorded therein, had been certified to the township clerk, or that the latter had directed the road supervisor to open or work said highway. This agreement of the parties obviates the necessity of inquiring into the validity of the proceedings, and the points argued may now be disposed of in the order presented.

1. Appellant first contends that the road supervisor, in attempting to remove the fence, was a trespasser, in that he was unauthorized by the township clerk. The Code requires the order of the board of supervisors establishing a highway to be spread on the road record by the county auditor, and also that the plat and field notes be recorded by that officer. Sections 1503, 1504, Code. Thereupon the auditor “shall certify the same to the township clerk, and the supervisors of roads shall be directed by him to have the same opened and worked,” a reasonable time being given owners to fence and the right to remove growing crops. It will be noted that a record of the certification to the township clerk and the direction of the latter to the road supervisor are not exacted of the county auditor, and for this reason the stipulation that the records fail to show either of these does not establish that the highway has been opened or worked by the road supervisor since established by the board of supervisors, and the presumption must be indulged that the auditor and township clerk performed their duties in the respects mentioned, if these were essentials precedent to the use of the road by the public, especially after the lapse of so many years. Section 1560 of the Code expressly authorizes the road supervisors to remove all obstructions in the road, and, if the fence was such, defendants had the right to remove the same.

2. There is no merit in the claim that the fence, if in the highway, did not constitute an obstruction. It extended for a distance of 160 rods near the center of the strip set apart for road purposes. The public highway from side to side and end to end belongsto the public. Perry v. Castner, 124 Iowa, 386, 100 N. W. 84, 66 L. R. A. 160;Rae v. Miller, 99 Iowa, 650, 68 N. W. 899;Slocum v. Ry., 57 Iowa, 675, 11 N. W. 641. And obstructing the same by fences is denounced by the Code as a nuisance. Section 5078, Code.

3. The width of the highway was not recited in the proceedings for its establishment. This was not necessary. Section 921 of the Code of 1873, now section 1483 of the Code, provided that “roads hereafter established, unless otherwise fixed by the board shall be at least 66 feet wide.” See Bigelow v. Ritter, 131 Iowa, 213, 108 N. W. 218. Nor is there any ground for the suggestion that its location was not definitely indicated by describing it as “commencing at the S. E. corner of the S. W. 1/4 of Sec. 9,” and “thence west on said line 160 rods.” Manifestly this line was intended as the center of the highway, as according to the stipulation of facts “lands for highway purposes were donated by the respective landowners on each side of the highway.” The line was as definitely described as though section 16 had been mentioned, and nothing in the record indicates a purpose that more should be taken for road purposes from section 9 than from section 16. It may be that the traveled way was not changed materially after the establishment of the road by the board of supervisors, but we have discovered nothing tending to show a purpose on the part of the board to locate the strip to be used as a highway other than as shown by the record. The mere fact that the fencing was not changed save by the owner of the S. W. 1/4 of section 9 down to the north line of the highway as established will not prevent the public from asserting its right to the portion inclosed by plaintiff whenever increased travel and the exigencies of the public so require.

4. The statute of frauds has no application, for the donation by the owners on each side of the highway amounted to no more than a waiver of any damages either might otherwise have claimed because of taking the land for the public use. The order of the board of supervisors, not the alleged donation, established the easement for the benefit of the public.

5. Though the authorities are in conflict on the question, this court is committed to the doctrine that in establishing and maintaining a highway a municipality exercises governmental functions, and for this reason the statute of limitations does not run against it with respect to encroachment therein. City of Waterloo v. Union Milling Co., 72 Iowa, 437, 34 N. W. 197;Taraldson v. Town of Lime Springs, 92 Iowa, 187, 60 N. W. 658. See cases collected in note to Maire v. Kruse, 85 Wis. 302, 55 N. W. 389, 26 L. R. A. 449; Warvelle, Ejectment, § 466 et seq. On this ground title to a highway cannot be acquired by adverse possession, but where an easement in the nature of a highway has been totally abandoned for more than 10 years, during which time private rights have been acquired by adverse claim thereto for a like period, the doctrine of estoppel has been applied against the public in the interest of justice to the abutting owner. Thus in Davies v. Huebner, 45 Iowa, 574, the court said that “where the nonuser has continued for such a length of time, and private rights of such character have been acquired by long continued possession and consequent transfer of lands by purchase and sale, justice demands the public should be estopped from asserting the right to open the highway. The first requisite to establish such estoppel should be that the adverse possession should continue for 10 years by analogy to the statute of limitations. Then it should be shown that there has been a total abandonment of the road for at least the period of 10 years.” In that case a house had been erected in the 60 feet set apart for a highway in 1846 by an adjoining owner, and defendant had cultivated up to a fence which he had maintained for over 10 years on the section line in the center of this strip. There had been no traveled way until recently, and the court held the public estopped from claiming any right in the portion inclosed. In Orr v. O'Brien, 77 Iowa, 253, 42 N. W. 183, 14 Am. St. Rep. 277, the highway had not been opened nor used for over 20 years after being established, and had been adversely occupied for more than 10 years, and the doctrine of estoppel was again applied as it was later in Smith v. Gorrell, 81 Iowa, 218, 46 N. W. 992, and Sherman v. Hastings, 81 Iowa, 372, 46 N. W. 1084. See, also, Crismon v. Deck, 84 Iowa, 344, 51 N. W. 55. But where the road has been established and continually used, the mere fact that the fences bordering it are not on the true line and the portion beyond has been occupied by the landowner up to the fence and not made use of by the public will not work an estoppel against the public, but the entire width of the highway may be appropriated by the public whenever required for the purposes of travel. The continued use of the highway rebuts any suggestion of abandonment, and the fact that the entire width has not been appropriated to such use indicates no more than that in the opinion of the then road officers all is not immediately necessary...