Strawberry Point District Fair Soc. v. Ball
| Citation | 177 N.W. 697,189 Iowa 605 |
| Decision Date | 15 May 1920 |
| Docket Number | 33352 |
| Parties | STRAWBERRY POINT DISTRICT FAIR SOCIETY, Appellee, v. DORA BALL et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 25, 1920.
Appeal from Clayton District Court.--W. J. SPRINGER, Judge.
ACTION to enjoin the defendants from opening a public highway over the land of the plaintiff, under Section 2028 of the Supplement to the Code, 1913. Opinion states the facts. Decree for the plaintiff in the court below. Defendants appeal.
Affirmed.
Alex Holmes, for appellants.
Newberry Bros. and D. D. Murphy & Son, for appellee.
This action was commenced on the 5th day of May, 1919. Its purpose is to enjoin the defendants from proceeding to condemn a strip 32 feet wide, over and across plaintiff's land, and from proceeding to lay out a public highway thereon, extending from the defendants' land on the west, over plaintiff's land to a public highway on the east.
The plaintiff is a corporation, and is the owner and in possession of a parcel of land consisting of about 28 acres, situated in the eastern part of the north half of the south-west quarter of Section 27-91-16. The plaintiff is a fair association, and its grounds are used for fairground purposes. The defendant Dora Ball is the owner of land immediately west of plaintiff's land. Wheeler, who figures in this case, owns the land immediately south of the land above referred to. The defendants also own the land immediately south of the Wheeler land. On this south land are defendants' buildings, and defendants are in actual occupation of the same. We take it, all the defendants' land is farm land. Their north 40 is used in connection with their south 80.
We submit herewith a plat, which shows correctly the relative position of the pieces of land involved in this suit.
[SEE PLAT IN ORIGINAL]
The above plat shows a strip of land 16 feet wide, running from defendants' north 40 to their south 80, along the west line of Wheeler's 80. This is the road which, plaintiff contends, gives defendants an outlet. It shows also the proposed road over plaintiff's land. The plat shows also, on the north of the fairgrounds, a road extending almost to defendants' north 40, to which reference will be made hereafter. The public road sought to be reached by these condemnation proceedings is a public road on the east of all the land herein referred to, and is shown on the plat.
It is the contention of the defendants that they have no public or private way of going to or from their north 40. On this contention, the defendants were proceeding to condemn land for a road over plaintiff's land, under Section 2028 of the Code Supplement, 1913, and Section 2029 of the Code of 1897, which read as follows:
The contention of the plaintiff is, and its action to enjoin is based upon the thought, that the defendants, at the time this action was begun, had a private way leading from their land to a public highway, and because of this they cannot maintain proceedings under the statute aforesaid, to establish a public road over plaintiff's land; that the fact upon which the right must rest, does not exist.
It goes without saying that the right to proceed under this statute depends entirely upon the existence of the facts upon which the right rests; that, to justify condemnation proceedings to secure a public way over the land of another, it must appear that the person seeking to exercise the right has no public or private way from his land to a street or highway. This is the word and spirit of the law. It must follow logically that, when the facts exist upon which the exercise of the right may be predicated, the exercise of the right cannot be interfered with in a proceeding such as has been instituted here. This necessarily resolves the case into a fact controversy, and presents the question: Did the defendant, at the time he undertook to exercise this statutory right, have a private way to his land, such as the statute suggests he is entitled to? If he did not, the statute affords him a remedy by which a way may be secured. If he did have a private way, such as the statute contemplates, then he was without right to proceed under the statute. It must, however, be a vested right of way, and not subject to the will of another. It must be either a vested private right of way, or such a public highway as vests in him a right to use in common with the public.
Prior to 1908, and until his death, which occurred on the 25th day of December, 1914, one Dunning was the owner of the land now owned by defendants. He was the father of the defendant Dora, and upon his death, she succeeded to his title. In the spring of 1908, while Dunning was the owner of this land, some arrangement was entered into between Wheeler and Dunning, under which a lane, 16 feet wide, was fenced off the west end of Wheeler's 80, connecting the 40 on the north with the 80 on the south of Wheeler's land, shown on the plat. This lane afforded ingress to and egress from the land on the south of Wheeler's, and to and from the land in question. Through this lane and over this strip of land, Dunning and the defendants could and did pass to and from this north 40, from 1908 up to the time this proceeding was instituted. On this south 80 are defendants' buildings, and this lane afforded a fair and reasonable access to the same from their north 40, and from the buildings to the public highway on the east. This was used by Dunning before, and by the Balls ever since, Dunning's death, and was still used by them at the time the condemnation proceedings, herein sought to be enjoined, were begun. The condemnation proceedings were commenced on the 25th day of April, 1919. The application was filed on the afternoon of that day. On the 24th day of April, Wheeler, at the instance and request of the plaintiff, tendered to the defendants a good and sufficient warranty deed to the said strip, and this deed was returned to Wheeler, with defendants' refusal to accept it, on the morning of the 25th day of April. The reason given by defendant for refusing it was that:
"He would not accept any other outlet from his land except that which he proposed to condemn, and would not listen to anything else from anybody."
The evidence shows that this Wheeler lane furnished a fairly good and sufficient road to, and a fair and reasonable exit from, his land on the north to his land on the south. The defendant Ball testified:
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