Schultz v. Stringer

• Decision Date: 10 February 1915
• Docket Number: No. 28951.,28951.
• Parties: SCHULTZ v. STRINGER ET AL.
• Court: Iowa Supreme Court

168 Iowa 668

150 N.W. 1063

SCHULTZ

v.STRINGER ET AL.

No. 28951.

Supreme Court of Iowa.

Feb. 10, 1915.

Appeal from District Court, Hardin County; R. M. Wright, Judge.

Action to quiet title and for an injunction against the defendants, Stringer and Robbins, who are the mayor and city marshal of the town of Alden, to enjoin them from removing an obstruction by plaintiff in an alleged alley. The trial court dismissed plaintiff's petition and dissolved a temporary injunction theretofore issued. The plaintiff appeals. Affirmed.H. F. Schultz, of Storm Lake, and Lundy, Wood & Baskerville, of Eldora, for appellant.

D. C. Chase, of Webster City, and Williams & Huff, of Eldora, for appellees.

PRESTON, J.

Plaintiff in her petition alleges that she is the owner in fee simple of real estate included within metes and bounds described as follows: Beginning at the north corner of lot 5, block 15 of the original town plat of the town of Alden in the county of Hardin, state of Iowa, running thence in a southeasterly direction along the northeast end of lots 5 and 6 of said block 15 to the east corner of said lot 6, running thence at right angles to the line last described in a northeasterly direction 152 feet, running thence northwesterly parallel with the northeasterly line of said lots 5 and 6 as aforesaid 132 feet, running thence southwesterly to place of beginning; that she has been in open, notorious, exclusive, and adverse possession of said property for more than 28 years under claim of right and color of title under and by virtue of a warranty deed to her, and that her grantors were in adverse possession for more than 30 years prior to the time of the accruing of the rights of plaintiff; that defendants claim some right, title, or interest in or to the property the exact nature and extent of which is unknown to her, but alleges that she believes that, among other claims, defendants claim the right to tear down a certain fence extending along the northwesterly and southeasterly sides of the said property and to open up a right of way across the property; that defendants have threatened to tear down the fences, but she alleges that defendants have no right, title, or interest in or to the property, and that any claims they may have are without foundation. She prays that she have decree quieting title in her to the property as against all defendants, that her title be established as title in fee simple, and that defendants be enjoined from interfering with the property described within the metes and bounds.

The answer denies all allegations not admitted, and alleges that defendant Stringer is the mayor of the incorporated town of Alden, and Robbins is the marshal thereof, and that at the times complained of in the petition defendants were acting as such; that at the times complained of in the petition, and for a short time prior thereto, plaintiff obstructed a public alley between lots 5 and 6 and lots 3 and 4 in block 15, original town of Alden, Hardin county; that said alley is about 20 feet wide and runs the entire length of said block 15; that defendants were removing the obstructions in the alley, which obstructions were wrongfully and unlawfully placed there by the plaintiff and her agent; and defendants allege that they had good right and lawful authority to remove the said obstructions.

The lots in question do not run exactly north and south, but nearly so. Lots 3 and 4 are the property of plaintiff and are north of lots 5 and 6. The west side of lots 4 and 5 are on Main street, which runs north and south. The alley in dispute is between the north and south half of this block; the block consisting of eight lots. Plaintiff obtained her title by warranty deed in 1884, and the property is therein described as lots numbered 3, 4, 5, and 6 in block 15, all in original town of Alden, Hardin county, Iowa. In 1901 plaintiff and her husband, by warranty deed, conveyed a part of the property to Birdsall, and described in the deed as lots 5 and 6 in block 15 in the original town of Alden. No mention is made of the alley in the deed to plaintiff or in the deed by which she conveyed lots 5 and 6. The plat shows that the lots are 66 feet wide and 132 feet deep. In the description of the lots in the petition by metes and bounds plaintiff has included the 20-foot alley at the south end of her lots 3 and 4, claiming that her two lots are 132 feet east and west and 152 feet north and south. In the petition the plaintiff has avoided referring to the alley and to the fact that the defendants are officers.

In an early day the entire block was fenced, including the streets, or some of them, and the alleys; witnesses testifying that at that time they were not needed. In recent years there are no fences around plaintiff's lots 3 and 4, except that at the west end of the alley she has maintained a gate, or bars, and the gate across the alley halfway between the west and east end; that is, at the east line of her lots. There are no improvements upon the alley south of plaintiff's lots, and it has been sown to grass, although at one time it seems there were some apple trees in the alley, as we understand the record, which had been removed.

There is a conflict in the testimony as to the use of the alley by other parties, some of the witnesses for defendant testifying that it was used by a number of people whenever they chose to go through; one witness puts it that it was so used for 18 years or more to his knowledge. The gate at the east was kept locked part of the time, and part of the time they were all open. Plaintiff's witnesses deny such general use and say that it was only used by some of the neighbors, and then by plaintiff's permission.

Plaintiff did not herself testify as a witness, but her son, who negotiated the purchase of the property as her agent, testified, as did also her brother, her brother-in-law, and her husband. The husband testifies that he and his wife bought the property together and the title was placed in her name for convenience. The town had been claiming for several years that there was an alley at the point in question, and about 10 or 12 years before the suit was brought the plaintiff's husband was digging in the alley for dirt to make a fill near plaintiff's house and was stopped by the city marshal, and the husband then went before the city council and obtained permission to remove the dirt on condition that he would leave the alleyway level so it could be used. Plaintiff's son, who is a lawyer and who lives at Minneapolis, Minn., states that the ground is...