Sarvis v. Caster

• Decision Date: 07 February 1902
• Citation: 116 Iowa 707,89 N.W. 84
• Parties: SARVIS v. CASTER ET AL.
• Court: Iowa Supreme Court

116 Iowa 707

89 N.W. 84

SARVIS

v.CASTER ET AL.

Supreme Court of Iowa.

Feb. 7, 1902.

Appeal from district court, Mahaska county; John T. Scott, Judge.

The plaintiff is owner of lots numbered 15 to 21, inclusive, constituting a block, bounded by Wells street on the south, Cherry street on the west, and Broadway on the east. Immediately east of Broadway is lot 22, also owned by her. She asked for the vacation of these lots and the portions of the streets mentioned. The defendants are owners of lots in the same addition to the village, and objected to the vacation of the part of the plat as proposed. On hearing the petition was dismissed, and plaintiff appeals. Modified and affirmed.Willard Carver and E. B. Skinner, for appellant.

Bolton, McCoy & Bolton, for appellees.

LADD, C. J.

The appellees in an additional abstract, designated by them an “amendment,” set out portions of the evidence, averring these to be a part of the record. If so, then the evidence must somehow have been properly preserved, and they cannot be permitted to raise the point that a transcript was not filed within six months from the entry of final decree. Conners v. Railway Co., 74 Iowa, 383, 37 N. W. 966. And it was not necessary to take an exception to the decree in order to have a hearing de novo. Dicken v. Morgan, 59 Iowa, 157, 13 N. W. 57.

2. Barnes City is a village of 250 inhabitants, and its principal highway is that running north and south, designated on the plat as “Broadway.” Improvements are being made, and the evidence indicates a substantial increase in population and industrial enterprise may reasonably be anticipated. The business houses front on Broadway, but one or two blocks from the portion of the plat sought to be vacated. The land immediately south is shown to be suitable for residence purposes, and one witness declares the village cemetery must, of necessity, be located in that direction. It has been surveyed, and a plat prepared, though not filed. Hence only a strip 25 feet wide, north of the dotted line between Wells' addition and the land south, has been dedicated as Wells street. Cherry street extends no farther than Wells, but whether Broadway runs to the south we have no means of knowing, save as ascertained from the plat. The statute provides that “if it shall appear that all the owners of the lots in the plat or part thereof to be vacated desire the vacation, and there is no valid objection thereto, a decree shall be entered vacating such portion of the plat and of the streets and alleys therein, and for all purposes of assessment such portion of the town shall be as if it had never been platted into lots; but if any street as laid out on the plat shall be needed for public use, it shall be excepted from the order of vacation and shall remain a public highway.” Section 920, Code. No objection whatever appears to the vacation of portion of the plat containing lots 15 to 21, inclusive, constituting one block, nor to that of Wells street. Plaintiff is owner of the entire block, and it is immaterial to others whether it remain subdivided. The owner west of Cherry does not join in the request that that street be closed. It would certainly abridge his privileges to vacate a street upon which his land abuts....