Scott v. City of Des Moines

• Decision Date: 09 October 1884
• Citation: 20 N.W. 752,64 Iowa 438
• Parties: SCOTT ET AL. v. THE CITY OF DES MOINES ET AL
• Court: Iowa Supreme Court

20 N.W. 752

64 Iowa 438

SCOTT ET AL. v. THE CITY OF DES MOINES ET AL

Supreme Court of Iowa, Davenport

October 9, 1884

Appeal from Polk Circuit Court.

ACTION to quiet title to a certain tract of land in the city of Des Moines, known as Market Square. The defendant, the city of Des Moines, filed an answer, in which it averred, among other things, that in January, 1856, one W. A. Scott, through whom the plaintiffs claim title, being then the owner of the land made a statutory dedication of the same as public ground. The Chicago, Rock Island & Pacific Railroad Company, and the Chicago, Burlington & Quincy Railroad Company, intervened claiming, under an ordinance of the city, the right to occupy the land for depot purposes. The court dismissed the plaintiffs' petition, and they appeal.

AFFIRMED.

Baylies & Baylies and James Embree, for appellants.

Williamson & Kavanaugh, for the city.

T. S Wright, for the C., R. I. & P. R'y Co.

Galusha Parsons, for the C., B. & Q. R'y Co.

OPINION

ADAMS, J.

In 1856, W. A. Scott, through whom both the plaintiffs and the defendants claim, was the owner of a tract of land which included the land in question. As such owner, he laid out the tract into lots, and made a plat thereof. Whether he filed the same for record does not appear by direct evidence; but it is shown that it was filed by some one, and, as the land was owned by him, and as he made the plat and sold lots by it, we think that the presumption is that it was filed by him. The plaintiffs insist, however, that, conceding this to be so, what was done was insufficient to constitute a statutory dedication.

The statute in force at that time, in relation to the platting of land and dedication of streets and public grounds, required that the land should be surveyed, and the lots marked by stakes at the corners; that a map should be made, showing where the stakes are set; that the plat should be acknowledged and the acknowledgment certified upon the map; and that the plat and acknowledgment should be presented to the county judge, who, if satisfied that the law had been complied with, should enter upon the plat an order that the whole be recorded. Code of 1851, sections 633, 634, 635 and 636. The plat in question purports to have been made in accordance with a survey; also to have been acknowledged before a notary public, and presented to the county judge, who indorsed thereon an order that the same be recorded.

The plaintiffs insist, however, that the plat is insufficient, in that the land platted cannot be located, and that the certificate of acknowledgment is insufficient, in that it does not appear that the notary's seal was attached.

As to the first objection, we have to say that there are shown the sections containing the platted land, the direction and width of the streets, the dimensions of the lots, and stones are marked upon the map, with a recital that the same are shown upon the ground. We may assume that the stones did at the time appear upon the ground, and could have been found, and, if so, we think that the land could have been located.

As to whether the notary's seal was omitted from his certificate, or was attached and has become obliterated after the lapse of so long a time, is a question which admits of some doubt; but, according to the view which we have taken of the case, it is not important to determine what the fact is. It was for the county judge to determine the sufficiency of the certificate, and, in the absence of any fraud practiced upon W. A. Scott, we think that the judge's determination, and Scott's own act in filing the plat with the judge's order thereon, concluded him. In filing the plat, and thereby making it a public record, it appears to us that he must be considered as accepting the judge's finding, whether right or wrong, so far as his rights were concerned, and that no public interest can be subserved by allowing him, or those claiming under him, to dispute the correctness of the finding.

But it is said that the judge's certificate, as endorsed, does not show a finding in respect to the notary's certificate. The judge's certificate is in these words: "I, Thomas H. Napier, county judge of Polk county, and state of Iowa, being fully satisfied that the provisions of the law have been fully complied with by Wilson A. Scott, in the survey of the town of Des Moines, it is therefore ordered that the plat of said town be recorded." The position taken by the plaintiffs is, that the judge appears to have been satisfied only that the provisions of the law had been complied with in the survey. But we think that the county judge used the word "survey" as including the construction and acknowledgment of the plat. The very fact that he made the order shows that he understood that the provisions of the law had been complied with in all respects.

But it is said that the order is insufficient, in that it directs merely that the plat should be recorded, whereas the statute provides that the order shall be that the whole be recorded that is, the plat and certificate of acknowledgment. Strictly, perhaps, the certificate of acknowledgment of a plat...