109 Iowa 425 | Iowa | 1899
In the yéar 1857 what is known as “Riddle’s Subdivision in the city of Council Bluffs” was duly platted by one John T. Baldwin, who was the owner, or trustee for the owners, of the land covered thereby. A copy of this plat is necessary to a full understanding of the questions presented, and it is here produced from a photographic copy:
What is there designated as Center street is now Sixth. Marcy is now Seventh; Baldwin, Eighth; and Chestnut, Ninth. Thirteenth avenue is the street running east and west just south of the land designated on the plat as Depot Grounds, and Fourteenth avenue is the next east and west street immediately south of Thirteenth avenue. The streets are now numbered numerically from' east to west, and the avenues from north to south, commencing with Ninth, which
At the time this suit was commenced the defendants were again threatening to open, up Seventh street over and across plaintiff’s right of way. Plaintiff claims that it owns the right of way shown o*n the plat, in virtue of the deeds from Baldwin and others, and that none of the streets-shown on the plat cross the same. It also insists that, if the public ever had any right to a crossing at Seventh street, it has lost it by abandonment and by adverse possession, and it contends that the vacation ordinance) to which we have referred operated as an extinguishment of the rights of the public. It will be noticed that the lines of the right of way, as shown by the plat, are continuous; that is, there
II. There was no- such conduct on the part of the city as will sustain the claim that it has abandoned the street crossing. As we have seen, the crossing was used for more than ten years after the- railway track was laid. The planks were no-t torn up until 1885. In the year 1891 the city was again asserting its right to- improve, and the evidence also shows that in the year 1894 one of the agents of plaintiff consulted with one of the aldermen of the- city regarding an amendment to- the vacation ordinance so that the city might require the erection of a viaduct over the railroad at Seventh street, under the provisions of chapter 32 of the Acts of the Twenty-second General Assembly; and the agent consented to such amendment, which was
III. The vacation ordinance on which plaintiff relies was not signed by the mayor of defendant city, as required by chapter 192, Acts Twentieth General Assembly,
Our conclusion is that the trial court was in error in granting the relief asked, and that the plaintiff’s petition should be dismissed.. — Reveesed.