Chicago, Burlington & Quincy Railway Co. v. Kelley, 105 Iowa 106

Chicago, Burlington & Quincy Railway Co. v. Kelley

105 Iowa 106 | Iowa | 1898

Ladd, J.

*1081 *107— The title to lot 1, in block 8, in the city of Keokuk, was in the heirs of one Hine, in 1869, who conveyed the same to the plaintiff in 1882. Their title, *108however, had been divested by a tax deed executed to George B. Dennison, November 4, 1874, and later by a tax deed executed to W. B. Collins, April 21, 1881. Collins conveyed the land to the plaintiff in 1882. Unless the title so acquired by the plaintiff has been lost by the tax deeds under which the defendant Kelley claims, it is entitled to the relief sought. We may then .give our attention to these deeds. The land in controversy was a portion of the “Half-Breed Tract” partitioned in 1889. The report of the commissioners indicates that Water street extends along the meander line of the Mississippi river, and that all town lots “are bounded by the middle of the street and alleys upon which they are situated, and the lots upon Water street also include all the land in front of them to the Mississippi river.” This report was confirmed by a decree of the district court of Lee county in October, 1841. The lot, as it appears on the plat, is one ■hundred feet on High street, by fifty on Water street, and is back 200 feet from, the high-water mark. The evidence shows that a strip of 66 feet wide along the east line of the lot as platted is Water street, 'and the remainder of the land down to high-water' mark, being about 134 feet, has been -continuously occupied by the plaintiff since prior to- 1882. Its freight depot, main line of road, and five switches have been there during this period, and, until the last few years, its- passenger depot also,. That the portion of land between the plat Mne and the high-water mark is a part of the lot admits of no doubt. It is expressly made so by the partition proceedings, referred to While Water street is within the city limits, the interest of the public therein is similar to that in any ordinary 'highway, being an easment only. The fee is in the abutting lot owners, in whom is also that to the high-water mark of the Mississippi river. Haight v. City of Keokuk, 4 Iowa, 212; Barney *109v. City of Keokuk, 94 U. S. 336. In Barney’s Case it is said: “The original proprietors in dedicating Water street reserved the title to the soil in the street, and this, title went with the several tracts fronting on the street and extended to the Mississippi river.” In Haight’s Case, Woodward, J., remarked: By this decree of partition, among the proprietors', those fronting on the river in like manner own the land — the fee1 — to the river.” But the lot as platted1, 50 feet by 100 feet, lies on a precipitous bluff composed of limestone, and was never actually occupied until 1892, when Kelley began quarrying limestone there, which work he prosecuted to some extent up to the time this action was begun. While the plaintiff actually occupied only that portion near the river, its deed from Collins conveyed the entire lot.

*1104 *109II. For the .year 1884 this lot was assessed to unknown owners, and, the tax remaining un-paid, was sold to William' Ballinger in December, 1885. Notice was served January 5, 1889, on J. F. Pollock, general agent of the Chicago, Rock Island & Pacific Railway Company, that Ballinger would 'take a tax deed, and this he did procure May 4th, following, from the treasurer of Lee county. On January 8, 1892, Ballinger assigned the certificate- of sale on which the deed had been issued to Peter Kelley, who on November 16, 1892, served notice on Ballinger, to whom the land was assessed that year, that unless redeemed within 90 days a tax deed would issue. On January 7, 1895, the treasurer executed a tax deed to Kelley, purporting to correct the one previously issued to Ballinger. The tax list of 1888 and 188,9 shows this lot to have been assessed under the name of the “Owner” to the “C., B. & Q. Ry.,” and under -the heading “Remarks” appeared in lead pencil, “Taxed by executive council.” Notice of the expiration *110of the right to redeeem must -be served upon the person in possession and him in whose name the land is taxed, before the tax deed may be executed. Code 1873, section 894. The initials “C., B. & Q. Ry.” did not indicate that plaintiff was intended. Accola v. Railway Co., 70 Iowa, 189. Nor did the evidence show that, at or prior to 'the time the tax deed was executed to' Ballinger, it was- commonly known and customarily referred to by that abbreviation. The evidence introduced related to the time of trial, and does not bring the case within the rule of Anderson v. Railway Co., 93 Iowa, 561. Neither Pollock nor the Chicago, Rock Island & Pacific Railway Company was in possession. But the plaintiff was in actual occupancy of a large portion of the lot, and held the title to all of it. If in possession of any part of it, a notice was required under the statute. Bradley v. Brown, 75 Iowa, 180; Callanan v. Raymond,75 Iowa, 307; Shelley v. Smith, 97 Iowa, 259; Garmoe v. Sturgeon, 65 Iowa, 147; Crawford v. Liddle, 101 Iowa, 148. The same is true of the deed to Kelley. The notice was served on. the person in whose name the land was taxed, but not on the plaintiff. That Kelley began quarrying some time during the same year did not deprive the company of the possession of the lower portion of the lot, nor relieve him from the necessity of notifying it before obtaining its property by tax deed. There is some evidence tending to show that the road and depot were the property of the Keokuk & St. Paul Railway Company, but, as possession was in the plaintiff, we make no inquiry as to such ownership. Bradley v. Brown, supra.

5 III. Defendant asserts that this action cannot be maintained because more than five years intervened between the execution of the deed to Ballinger and the beginning of the action. Code 1878, section 902. The -statute of limitation does not begin to run when the deed is issued without notice being served on the person in whose name land is taxed. *111Slyfield v. Barnum, 71 Iowa, 245; Wilson v. Russell, 73 Iowa, 395. The same rule applies where the deed is invalid by reason of the failure to notify the person in possession. The authority of the treasurer to issue the deed is dependent on the service of the notice. The deed is not void. Bowers v. Hallock, 71 Iowa, 218. But, as the sale remains incomplete, the period of limitation fixed by the statute will not begin until the sale is perfected.

6 IY. The point is made by plaintiff that this lot was used exclusively for railroad purposes and asisessed by the executive council of the state. Code 1873, section 1317. It is admitted to have been so returned by the company, but there is no evidence of an assessment. The appellee insists that this will ¡be presumed. Section 1319 enumerates the property to 'be so assessed, and it is said that, as officers are presumed to do their duty, this lot must be held to have been included in the assessment of that body. The objection to such a conclusion is that it ignores the statutory presumption that the tax deed was based on a valid assessment. Code 1873, section 897. The executive council is not concluded by the return of the railroad companies, and may reject property as not coming within the provisions of Code 1873, sections 1317, 1319. To defeat the payment of taxes levied on assessments made by the local authorities, not the return, but another valid assessment, must be shown. 'This was not 'done.

7 Y. The plaintiff tendered the amount paid by Ballinger at the tax sale, with interest and penalties, and these it will be required to pay in order to redeem. With this modification the decree will be affirmed. — Modified and AFFIRMED.