Smith v. Gorrell

• Decision Date: 20 October 1890
• Parties: G. L. SMITH, Appellant, v. J. R. GORRELL et al., Appellees, AND JASPER COUNTY, Appellant
• Court: Iowa Supreme Court

46 N.W. 992

81 Iowa 218

G. L. SMITH, Appellant, v. J. R. GORRELL et al., Appellees, AND JASPER COUNTY, Appellant

Supreme Court of Iowa, Des Moines

October 20, 1890

Appeal from Jasper District Court.--HON. D. RYAN, Judge.

ACTION to enjoin the opening of an alleged public highway. The county of Jasper was made a party defendant by order of the court. On final hearing a decree was rendered, from which plaintiff and the county of Jasper appeal. The facts are stated in the opinion.

REVERSED.

Meredith & Ogg, Alanson Clark and W. G. Clements, for appellants.

Winslow & Varnum, for appellees.

OPINION

ROBINSON, J.

This action was commenced April 23, 1888. The plaintiff is the owner of the southeast quarter of the southeast quarter of section twenty-four, township eighty, range twenty, in Jasper county. The defendant Groebel is supervisor of the road district in which the land is situated, and threatens to enter upon the same, and open a public road along the south line thereof. The defendant Gorrell is the owner of property in the neighborhood, and is desirous of having the road opened. Groebel and Gorrell are the appellees, and they contend that a state road was duly established on the line in question in the year 1858 by virtue of chapter 91 of the Acts of the Sixth General Assembly, and chapter 149 of the Acts of the Seventh General Assembly. Reliance is also placed upon some provisions of the Code of 1851. The plaintiff denies that the road was ever in fact established, and claims, further, that his title is now perfect to the strip of land in dispute as against the public by reason of adverse possession under claim of absolute ownership by himself and his grantor for more than ten years.

The district court found in favor of Gorrell, and, as to him dismissed the petition. It further found that plaintiff was the absolute and unqualified owner of the land described excepting a strip thirty feet wide on the south side thereof. It further found that the highway in question was established in December, 1858, along the south side of said forty-acre tract, and that it included the strip described. The court also found that notice of the establishment of said road and of the right to claim damages by reason thereof had never been given to the owner of the land, excepting as it was imported by the passage of the acts specified, and the filing of the commissioner's report with the county judge, and that the question of damages had never been determined. It was also found that the strip had been inclosed with the remainder of the forty-acre tract for more than fifteen years continuously prior to the commencement of this action, under a claim adverse to the public; that the agent of the owner who first inclosed the tract had actual knowledge of the location of the road in question; that no work had been done by the public on the strip described, and no travel had passed over it for more than fifteen years prior to the commencement of this suit; that Groebel, as road supervisor was about to enter upon the strip for the purpose of opening the road when enjoined, and that the county of Jasper was liable to plaintiff for the damages which would result from taking the strip of land for public use. After the county was made a party defendant, it was ordered to proceed by its officers without delay to have determined the question of damages, when claims therefor should be made, and the cause was continued for further order upon the...