Town of Kenwood Park v. Leonard
| Decision Date | 29 June 1916 |
| Docket Number | 30664 |
| Citation | 158 N.W. 655,177 Iowa 337 |
| Parties | TOWN OF KENWOOD PARK, Appellant, v. JOHN C. LEONARD, Appellee |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--JOHN T. MOFFIT, Judge.
ACTION to enjoin the defendant from obstructing alleged public streets. Defense, that the streets had been vacated, as provided by Section 919 of the Code of 1897. Decree for the defendant in the court below.
Affirmed.
F. L Anderson, for appellant.
Voris & Haas and O. N. Elliott, for appellee.
I.
This is an action in equity, brought to quiet title to certain lands alleged to be streets and avenues in the town of Kenwood Park, and to enjoin and restrain the defendant from fencing or otherwise obstructing them. The pieces of land involved in this suit, which the plaintiff claimed to be public streets of the town, are: (1) Walnut Street, known on the plat as Street D, which will be referred to hereafter as D Street; (2) the west end of Lynn Avenue, now Third Street, hereafter called Third Street, and the west end of Elm Avenue, now called Second Street.
That there may be a better understanding of this controversy and of the relative location of the different tracts involved in this suit, we submit herewith a plat of the town of Kenwood Park, showing the streets, blocks, lots and the particular part concerning which this controversy arises. The dark lines appearing upon the plat include Lot 4, containing 26.40 acres, and Lots 6 and 7 of Block 4, Lots 6 and 7 of Block 5, Lots 6 and 7 of Block 12, and all of D Street, and the west ends of Second and Third Streets as originally platted. D Street runs north and south; Second and Third Streets, east and west.
[SEE PLAT IN ORIGINAL]
On the 2d day of May, 1884, one Isham and others were the owners of all the land lying east of the west line of D Street, and on said day caused a survey to be made and the plat thereof to be drawn, and the lots, blocks and streets to be marked as shown on said plat, and designated the same as Kenwood Park Addition. This plat was duly filed for record and recorded on the 5th day of May, 1884.
D Street is on the west line of this platted land. Blocks 4, 5 and 12 lie east of and abut upon D Street. The large lot to the west, known as Lot 4, was farm property at the time the plat was made, and contained about 23 acres, and was not included in the original plat.
It is conceded that, at the time this action was commenced, defendant was the owner of this Lot 4, and also of Lots 6 and 7 in Block 4, Lots 6 and 7 in Block 5, and Lots 6 and 7 in Block 12, on the east side of D Street and abutting thereon. It appears without dispute that the plaintiff had been the owner of this large Lot 4 for over 30 years; that he acquired his ownership of Lots 6 and 7 in Block 4, and Lot 6 in Block 5, prior to the year 1902, and of Lot 7 in Block 5, and Lots 6 and 7 in Block 12, prior to May, 1904; that, at the time this action was commenced, he was the owner of all lots abutting upon the streets in controversy, so far as those parts are involved in this suit. At the time this land was platted and the plat filed, the land included was simply a government subdivision, and was not within the limits of any municipality.
Section 638 of the Code of 1897 provides that town sites platted and unincorporated shall be known as villages. Section 1507 of the Code provides that all public streets of villages are a part of the public road or highway; and all road supervisors or persons having charge of the same, in the respective districts or villages, shall work the same as provided by law. Section 1482 of the Code provides:
"The board of supervisors has the general supervision of the roads in the county, with power to establish, vacate and change them."
The filing of a plat dedicating a highway in a village unincorporated, does not convey to the village, or to the public, the fee title. By such dedication, the general public acquires only an easement in the highway--a right to use it for public purposes. The fee remains in the original owner, and, when vacated, it reverts to the original owner, the same as in all other public highways outside of incorporated cities and towns.
Chapter 13, Title V, of the Code deals with cities and towns, and not with villages, and does not cover town sites platted and unincorporated.
Section 917 of Chapter 13, Title V, of the Code of 1897, in so far as it provides that the recording of plats, such as we are dealing with, is equivalent to a deed in fee simple of such portion of the premises platted as is set apart for streets or other public uses, evidently relates to streets in cities and towns, and not to streets in unincorporated villages.
The plaintiff city was not incorporated at the time this plat was filed, and not until the year 1886. The ground formerly platted as Kenwood Park, and the ground known as Lot 4, west of D Street, was all included within the corporate limits of the town of Kenwood at the time it was incorporated. The effect of this was to transfer jurisdiction over these streets from the board of supervisors to the city council. As the city was not in existence at the time the plat was filed, and could not, therefore, as such, acquire any immediate interest in the streets dedicated, title to, or control over them, the question arises, What right did the city acquire in these streets upon its incorporation? We may assume that it acquired all the rights which flowed from the dedication at the time the plat was filed. At the time the plat was filed, the owners undoubtedly dedicated to public use, for the purposes of public travel, that portion of the plat set apart for streets. The land included in the plat being unincorporated, the filing of the plat did not convey fee simple title to the land covered by the streets, even when accepted. The effect of the plat gave the public at large the privilege of passing over and using the land so set apart as a public highway, for public travel. The public acquired a right to an easement in the land so set apart, for the purposes for which it was set apart. When accepted as such, the ownership of the land covered by the easement remained in the original owner, subject only to the right to an easement. As said in Burroughs v. City of Cherokee, 134 Iowa 429, 109 N.W. 876:
"The recording of the plat is a tender of the conveyance of portions set apart as streets and alleys for such use, to a municipality, and continues until shown to have been withdrawn."
To an incorporated city or town, the tender is in fee, and, when accepted, vests in the municipality a fee title to the land set apart as streets in the plat. See Section 917 of the Code of 1897. When tendered to an unincorporated village, it is the tender of an easement in the land set apart, and, when accepted by the public, the right to the easement becomes complete.
What right the city acquired in these platted streets upon assuming corporate capacity, whether a fee or an easement, it is not necessary for us to determine at this time. In either case, the tender must be accepted before withdrawn. As to cities and incorporated towns, the legislature provided that, before the conveyance should become complete upon the filing of the plat, there should be some acceptance on the part of the city of the tendered fee; for it is provided in Section 751 of the Code of 1897:
"No street . . . which shall hereafter be dedicated to public use by the proprietor of the ground in any municipal corporation shall be deemed a public street, . . . unless the dedication shall be accepted and confirmed by an ordinance or resolution specially passed for such purpose."
The legislature therein provided a solemn and certain method by which the intent to accept would be made manifest. As said in Burroughs v. City of Cherokee, supra:
As said before, the filing of a plat is a tender of conveyance of title in fee to incorporated cities and towns. It is the tender of an easement in the land set aside for streets, to an unincorporated village. In either case, the tender continues until shown to have been withdrawn, and it is presumed, when the plat has once been solemnly filed, that this tender of right in the property set aside for streets continues until something has been done to indicate to the public that the tender has been definitely and permanently withdrawn. The time intervening between the filing of the plat and acceptance is not always controlling. The city or town has a reasonable time in which to make its election, and what is a reasonable time in any particular case depends upon the facts and circumstances, the location of the streets, the extent of the municipality at the time, and the mediate or immediate need of the public to use the property. The right to withdraw the offer also depends upon facts and circumstances. The owner may preclude himself by the selling of lots or blocks, with reference to the conditions shown upon the plat, or by acceptance by the city and improvements made. If the tender has continued for a reasonable time, and has never been accepted by any act of the city, and the city has never assumed jurisdiction or control over the proffered...
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