134 Iowa 429 | Iowa | 1906
This does not mean that a city may abandon all use of and control over a street, and stand idly by while it is closed to the public under a claim of private right, and subjected to use and occupancy as private property, and then at any time in the indefinite or remote future be heard to demand its reopening. There is no law which compels a city to open and improve a street which has been platted and dedicated to public use, nor any law which forbids the total abandonment or vacation of one which has already been opened. It is therefore well settled in this and most other States that, while mere nonuser for 10 years or more will not of itself operate to defeat the public title to a street, yet where there has been such nonuser for a long time — not less than the statutory period in ordinary cases — and this is accompanied by the actual and notorious possession of the land by an individual as private property under a claim of right, an abandonment will be presumed, and the public right in the street will be held to have been extinguished. . . . Practically speaking, the land has never been opened or subjected to public use as a street since its platting 56 years ago. This is concededly true for a period of 20 years immediately before the commencement of suit, during all of which time the defendant has been in actual, exclusive possession under claim of right, without protest or interference from the city, its officers, or the general public. This we have repeatedly held will work a loss of the public right, and the rule thus státed must be considered the law of this State.' This, it must be remembered, does not apply to mere nonuser, where there is no actual possession under a hostile or inconsistent claim of right; nor will mere delay to assert a public right, in the absence of other circumstances raising an equity in favor*436 of an individual claimant, be sufficient to create an estoppel or establish an abandonment.
Technically speaking, there can be no abandonment of a street which has never been accepted. Not having obtained title or right to the ground tendered by the plat for that purpose, the municipality has nothing to part with save the mere right or privilege of acquiring the ground for street purposes. The loss of this right or privilege can be established only by proof of circumstances indicating a determination on its part not to avail itself thereof, and therefore in effect a refusal to accept, or which estop it from asserting the right; and this happens whenever there has been occupancy of portions of the plat set apart for public purposes by the proprietor or his grantees in a manner inconsistent with future use for such purpose and for such length of time as shall show acquiescence by the officers of the city or town in the permanent appropriation of the ground for other purposes.
Having stated the principles which must govern our decision, we first inquire whether the portions of the plat known as “ Burroughs’ Magnetic Spring addition to New Cherokee ” set apart for streets have ever been accepted as such by the defendant or its predecessor, New Cherokee. Nothing has been expended thereon by the public in the way of work or improvements, and the dedication was not accepted by ordinance, unless this happened by virtue of the adoption of an ordinance establishing a system of sanitary swerage in 1896 or 1897. Eor an accurate knowledge of the situation it is necessary to set out the map of the addition and other lands of plaintiff, prepared by J. S. Pingree, the county surveyor, and conceded by the parties to be correct. See following page.
9 and 10. This constituted the entire addition. The line of short cross-marks indicates the location of the fence. It was torn down where it crosses Summit, Magnetic, Park (“ E. Cedar ” on map), and Saratoga avenues, and the relief sought is a permanent injunction restraining the city from interfering with the plaintiff’s fence at these localities. This necessarily depends upon whether it has the right to make use of the so-called avenues for street purposes. The ordinance referred to adopted certain profiles and plans and speci
It appears, then, that fourteen or fifteen' years had elapsed from the recording of the plat to the time the city accepted the dedication of the streets. This alone would not bar such right, and our next inquiry is whether the circumstances are such that the inference may be drawn that the city, prior to such acceptance, had acquiesced in the use of the land proposed for streets for other purposes, and thereby abandoned the right to acquire them by acceptance for the public. Ever since the recording of the plat the parties have conveyed the lands by lots and blocks as numbered in the plat. Moreover, residences have been erected on several lots. Nathaniel Bruce has resided on lots in block 1 since 1883. W. H. Millard resided on lot 2 in block 3 for several years after 1889, since which time the house has been occupied by a tenant. There has been a residence on lots 1 and 2 in block 4 since 1885; on lot 5 in block 6 since 1891; on a strip on west side of block 1 since 1891. The south two hundred and seventy-three and one-half feet of block 10 has been- platted into lots and disposed of by the purchaser. Plaintiff claimed to have acquired the seven lots of block 5 from Lebourveau, and explained their inclusion within his fence on this ground; but the record leaves no doubt of his mistake in this. He first became owner thereof under a conveyance from Job Leeds May 16, 1902, long after the acceptance by the city. Leeds obtained title thereto through mesne conveyance under Lebourveau. It will also be observed that each street mentioned, if plaintiff’s contention be
But it is said that the location of the streets within the inclosure was not sufficiently definite. The dedication stated that the width “ of each street and alley is as shown on the above plat. . . . There are stones planted at the intersection of the streets marked ‘ X’.” A photograph of the plat introduced in evidence indicates the location of these stones at the intersection of the streets, one of them at the intersection of Park and Saratoga Avenue, and that Saratoga avenue passes from the south line of blocks 9 and 10 to the intersection of Summit avenue. It is regular up to the intersection with Park avenue, and then curves around block 5, and then around block 3, as appears from the plat. The space marked “ Street ” in block 1 is in fact lot 10, and was not dedicated as a street. The exact loca
Briefly recapitulating, we have to say that the only circumstances inconsistent with the city’s right to acquire the streets by acceptance were the excavation of the lake across Saratoga avenue and extension of the sanitarium partly in the street. This last must have been by mistake rather than by design, as the building was erected about the time the plat was filed and the driveway laid out and improved. How the lake came to be so excavated there does not appear. It was done shortly after the plat was filed. Plaintiff did not include Saratoga avenue below it within his fence, as doubtless would have happened had he intended to permanently appropriate it. Nor ought he to be assumed, unless necessarily so, to have cut off the end of this street and created of it a cul-de-sac.' On the other hand, there is the presumption that the dedication of the streets and alleys was tendered in good faith and not to be withdrawn immediately or as soon as the lots were disposed of. Nor ought it to be assumed that the proprietor, in improving his land, de