City of Cedar Rapids v. Young

119 Iowa 552 | Iowa | 1903

McClain, J.

In the absence of any reproduction in the abstract of any of the maps or plats referred to in the •evidence (save a plat at the end of appellee’s amendment to the abstract, which is not, so far as we can see, referred to in the record itself, and does not purport to be a reproduction of any plat properly in the record), we are compelled to determine this case largely on the view of the evidence which is taken by the counsel for the two parties, respectively. We think, however, that we shall have ¡no difficulty in stating facts . practically conceded by both parties, on which a conclusion may properly be reached.

i. highway evidence. ' The evidence shows that ever since 1840 there has been a traveled public highway from Cedar Kapids southward, corresponding with second and J streets in West Cedar Kapids. J street runs diagonally through a tract of land which originally constituted the east one-half of block 29 in May, Fero & Gay-nor’s addition, and defendant claims title to the portions of the lots of that block east of J street. Up to 1897 this road was continuously used as a public highway, although, by reason of the fact that at the point in question it runs through low land, it was sometimes impassable, and persons desiring to pass along the course of this general road drove to one side or the other, on higher land; the road at this place not being bounded by fences. However, from time to time attempts were made to improve the road at this particular place; stone being thrown in, and the center of the road raised, to some extent, above the ditches at the sides. In 1897 defendant erected a fence in front of his land, in the middle of the highway, as before traveled, and inclosed the portion abutting on his lots; thus making a jog in the road, and leaving a narrower strip in front of his premises than that occupied by the road on either side of him. His contention is'that there is no platted highway adjoining his lots, and that there has been no such dedication or prescriptive use as to give the public a right to pass along this road. We think it is not necessary here to go into a discussion of the law of dedication and prescription, as applied to highways. It is enough to say that if the evidence shows that a definite way was occupied and used by the public from before the time this land was surveyed, up to 1897, and that during this time such highway, was worked as a public highway, there cannot be the slightest doubt that the public had acquired an easement which no abutting property owner could interfere with. Prior to the adoption of section 2081 of the Code of 1878, which is now section 8004 of the present Code, it was hel'd that by use of land as a highway for the statutory period of limitation, and with the knowledge of the owner, the public would acquire an easement, a .dedication being presumed. Onstott v. Murrag, 22 Iowa, 467. There is no question, in our judgment, that, under the evidence, what is now platted as J street was used for many years — certainly for more than ten years — as a public highway, before the Code of 1873 went into effect. The abutting property owners were in possession and occupation of their lands, and knowledge of the public use must be assumed. Even under the statutory provision above referred to, use, with the knowledge of the owner, for the statutory period of limitation, has been held admissible as tending to show a dedication. Hanger v. City of Des Moines, 109 Iowa, 483; Burlington, C. R. & N. R. Co. v. City of Columbus Junction, 104 Iowa, 110; Duncombe v. Powers, 75 Iowa, 189. And see Elliott, Roads & Streets, section 123.

2. same;^estoppel. The evidence shows, without question, sufficient acceptance of the highway as a street; and, with dedication and acceptance fully established, there seems to be no merit in defendant’s claims. It is said, however, that defendant and his grantors have been taxed on the strip of land covered by the highway, and that the city is thereby estopped ■ from claiming any right thereunder as against defendant; but there is no merit in this contention. All that the record shows by way of taxation is that defendant and his his grantors have paid taxes oh certain fractional lots, designated by number, and there is no claim that the highway covers all, or a considerable portion, of the fractional-lots thus designated. These lots were property taxed, therefor, to defendant and his grantors, irrespective of whether a portion thereof was used as a highway or street. It is only where the taxes are specifically assessed on the land occupied by a street that any question of estoppel can arise. It is not necessary that we should now review the cases on the subject.

The decree of the lower court is reversed.