2 Iowa 27 | Iowa | 1855
The petition "avers, that the defendant caused this parcel to be marked Church square, “ thereby dedicating and granting it to the said Christian church at Pella.” And, again: it avers, that he granted and dedicated to the said Christian church, “ a certain parcel of land, known and designated as ‘ Church square,’ on the plot of the said town of Pella, by setting apart and designating said parcel of land as Church square, on the plot of said town.” The petition further alleges, that on the 5th of June, 1848, there existed an association, or organization, of the members of the said Christian church, at said town of Pella, and avers an incorporation on the 2d December, 1849. The defendant demurs to the petition. It may lead to brevity, to look first at the fourth cause of demurrer, which is: that there is no showing that the pretended grant, or dedication, was made to the plaintiffs. The petition avers this to have been done by the designation of the parcel, as Church square. The case rests
The question now arises, is the plaintiff’s petition in law, or in equity ? This is to be determined by the prayer and conclusion. They say they have a valid, subsisting interest in the property; that they have a right to the immediate possession thereof, and to the ownership in fee simple; and they pray, that they may receive the immediate possession of the said square, and one hundred dollars damages, for the detention thereof. Now, this is an action at law, and we have seen that the plaintiffs have not a legal title; and neither have they, as yet, an exclusive right of any kind. How, then, can they recover ? The demurrer must prevail, which avers that there is no showing that the dedication was to the plaintiffs, for the petition does not assert absolutely, but avers that it was granted them, by thus designating it on the plot, whilst the legal conclusion from this designation, contradicts their inference, that it was dedicated to them.
The plaintiffs cannot recover in this action, and this is all we are called upon, by the case, to decide.
It is desired that we should go further, and consider other questions which arise; but the questions are of too grave a nature for extra-judicial decision. Two or three queries may, however, be suggested, which' may save the parties much trouble and litigation; as, whether such dedications, and especially those to charitable purposes, require
The judgment of the District Court will be affirmed, -and the petition is dismissed.
"Wri<}e:t,-C. X, having "been of counsel, took no part in the decision of tbis «asm