Stange v. Hill & W. Dubuque St. Ry. Co.

• Decision Date: 22 October 1880
• Citation: 54 Iowa 669,7 N.W. 115
• Court: Iowa Supreme Court
• Parties: STANGE AND OTHERS v. HILL & WEST DUBUQUE STREET RAILWAY CO.

54 Iowa 669

7 N.W. 115

STANGE AND OTHERS

v.HILL & WEST DUBUQUE STREET RAILWAY CO.

Supreme Court of Iowa.

Filed October 22, 1880.

Appeal from Dubuque circuit court.

Action to recover possession of a certain street in the city of Dubuque, and for damages alleged to have been sustained by the wrongful use of the street. The plaintiffs are the owners of a certain lot in the city of Dubuque, fronting upon what was formerly called Eighth street, but now Julien avenue. Upon this lot are two brick houses and one frame house. In 1877 the city council of the city of Dubuque passed an ordinance authorizing the defendant, a corporation incorporated under the name of Hill & West Dubuque Street Railway Company, to construct and maintain a street railway along Julien avenue, and to operate the same by either horse or steam power. The ordinance provided that tracks should be put down in such a manner and on such level as should be best adapted to the use of horse or steam power, but should be constructed in such a manner as to obstruct the street as little as possible. Soon after the passage of the ordinance the defendant constructed a street railway along Julien avenue, and from the time of construction has operated the same by steam power. The plaintiffs claim to own the fee to the center of the street, and upon such claim they base their right to recover possession of the street. They also aver that the defendant has raised a large embankment for a road-bed between the center of the street and their lot, whereby their premises have been greatly damaged. The court held that the plaintiffs did not own the fee to the center of the street and directed a verdict for the defendant. The plaintiffs appeal.S. M. Pollock, for appellant.

S. P. Adams and E. McCeney, for appellees.

SEEVERS, J.

The lot in question is lot 49 in Coriell's addition, and is a part of outlot 702. Julien avenue was along the north side of the outlot. Lot 49 is in the north-east corner of the outlot. So both the outlot and lot 49 front upon Julien avenue. The outlot and Julien avenue were laid out by commissioners of the United States, under an act of congress. The public acquired only an easement in the street, the fee to the center of the street being appurtenant to the lots adjacent. City of Dubuque v. Maloney, 9 Iowa, 480. The appellant insists that, after the subdivision of the outlot 702, the fee to the center of the street remained appurtenant to the sublots fronting on the street. Whether it did so constitutes one of the principal questions in the case. The subdivision of the outlot was made by one Charlotte Coriell, who was the owner at that time. The plat was duly executed and recorded, and there was indorsed thereon the following dedication:

“DUBUQUE, IOWA, 7th of June, A. D. 1854.

The disposition of my land, as shown by this plat, is made with my free consent, and in accordance with my desire; and I hereby, for the purpose of public highways, dedicate to the public the streets and alleys hereon indicated.

CHARLOTTE CORIELL.”

Upon the plat, Julien avenue, then called Eighth street, is indicated only by the words “Eighth street,” written along the north line of the sublots. The clear indication is that the north line of the sublots is the south line of Eighth street, but the north line of Eighth street is not shown. The question presented is as to whether Charlotte Coriell parted with the fee in Eighth street by reason of the dedication. The land was platted under the Code of 1851. Section 637 of that Code provides that a plat made in accordance with the provisions of the statute should, when duly acknowledged and recorded, be “equivalent to a deed in fee-simple of such portions of the land as is therein set apart for public use.” That Charlotte Coriell parted with the fee in the streets which are fully described and embraced in the plat, is...