Rae v. Miller

• Decision Date: 27 October 1896
• Citation: 68 N.W. 899,99 Iowa 650
• Parties: THOMAS RAE, Appellant, v. SOLOMON MILLER AND WILLIAM RULE
• Court: Iowa Supreme Court

68 N.W. 899

99 Iowa 650

THOMAS RAE, Appellant, v. SOLOMON MILLER AND WILLIAM RULE

Supreme Court of Iowa, Des Moines

October 27, 1896

Appeal from Crawford District Court.--HON. C. D. GOLDSMITH, Judge.

THIS is a suit in equity, in which the plaintiff demands an injunction restraining the defendants from tearing down and removing a fence which incloses plaintiff's land. There was a decree for the defendants, and plaintiff appeals.

Affirmed.

J. P Conner for appellant.

T. J Garrison and Shaw & Kuehnle for appellees.

OPINION

ROTHROCK, C. J.

The plaintiff is the owner of eighty acres of land in Paradise township, Crawford county. The land is the east half of the northeast quarter of a section, so that it is one hundred and sixty rods long from the north to the south line, and eighty rods wide. The right of way of the Chicago & North-western Railroad extends across the land in a diagonal direction. The railroad enters upon the land on the east side, at about the center of the east line, and runs southwest through the tract. In the year 1875, a county road was laid out and established along the north line of the railroad right of way, so that the whole width of the road was on the land owned by the plaintiff. Thomas Harker was the owner of the land when the road was established. He erected a fence along the road, and the public have used the road from a very short time after it was laid out until the trial of this case in the district court. When Harker erected his fence he did not place it for the whole length of the line, and at an equal distance from the line of the right of way. At one point the width left for the public road was thirty-six feet or thereabouts. Harker testified on the trial that he intended to give forty feet for the road, and erected the fence accordingly. Harker sold the farm to the plaintiff in 1891, and in the spring of 1892, the plaintiff removed the fence, and erected another, which was practically on the same line. The new fence leaves the road about thirty-six and one-half feet wide at the east line of the land, forty-seven feet in the center, and about fifty feet on the west line. There is some conflict in the testimony of the witnesses as to the exact location of the old and the new fence; but, in the view we take of the case, the exact line of the fence is not material. One of the defendants is the township clerk of Paradise township, and the other is the road supervisor in the district where the road is located. In 1893 they proposed to remove the fence and widen the road and plaintiff commenced this action. The land north of the fence has been farmed and used by the plaintiff and his grantor up to the line of the fence at all times since the first fence was erected, and the public has used, worked, and traveled the road up to the fence, without any public claim that the fence was an encroachment on the public highway. It was admitted on the trial that the road was legally established, and that the record of the establishment was silent as to its width. Section 921, of the Code, provides that...