City of Keokuk v. Cosgrove

116 Iowa 189 | Iowa | 1902

Deemer, J. —

1 George Cabus at one time owned the whole of block 121 in the city of Keokuk. When the block was platted an alley running east' and west through the block was dedicated to the public. Cabus concluded to change the frontage of the lots lying in the north half of the block and on February 2, 1872, he sold lot? 10, 11 and 12 to one Madden, “except the west ten feet of lot ten, which is hereby reserved and dedicated as a public alley.” Madden gave back a purchase money mortgage, which contained this stipulation: “* * * except ten feet off the west side of lot ten hereby conveyed; the whole being 140 feet on Tunea street, by 140 feet deep to an alley in said block; all in the city of Keokuk; it being understood and agreed that the said Cabus is also to dedicate as a public alley 10 feet adjoining the ten feet hereby reserved off the east side of lot 9 in said block to complete the 20-foot alley.” This mortgage contained the usual stipulation that it was'to be void if Madden should pay the notes secured thereby. Madden failed to pay, and his mortgage was foreclosed, and one Yoorhees became the owner of the lots covered thereby, under a sheriff’s deed. This deed conveyed lots 11 and 12 and the easterly forty feet of lot 10, “being 140 feet square, in block 121.” Interveners hold title to these lots through certain mesne conveyances from Yoorhees, each of which recognized the 10 foot strip on lot 10 as an alley. They had made improvements with reference to its being an alley, and had always used it as such. ’In 1889 Cabus conveyed the easterly half of the north half of the block to one Hand; the deed describing the property as “lots I & 8, and the westerly 40 feet of lot 9.” Eand conveyed to the defendants, using the same description to designate the property transferred. In 1895 Cabus deeded to James Finnegan the westerly 10 feet of lot 10 and the easterly 10 feet of lot 9, for the expressed consideration of $150; the deed reciting that “he hereby sells and quitclaims” the property. On the same day Finnegan sold and quitclaimed the 20-foot strip to the defendants; his deed reciting “that I hereby revoke, withdraw, annul, and cancel any and all offers of said George Cabus to dedicate any part or all of the above described premises to public use, and I revoke, cancel, withdraw, and annul the offer made by my grantor, George Cabus, to J ames Madden.”

The following plat taken from the records of Lee county will aid in understanding the facts above recited:

It is not claimed that there was statutory dedication to the public of the tract in dispute, and, if it be an alley, it is because of a common law dedication, and acceptance by the public. In addition to the statements and reservations contained in the deeds 'and mortgage above referred to, we have the testimony of Cabus that in making these instruments he intended to dedicate the 20-foot strip to the public. Surely acts of dedication and animus dedicandi are established. Appellants argue, however, that the dedication ivas conditional on Madden’s paying the mortgage indebtedness. The mortgage does not so recite. It was to become void in the event Madden paid. Aside from this, the evidence shows not only that the dedication was unconditional, but that the purchaser at sheriff’s sale and his subsequent grantees all recognized the west 10 feet of lot 10 as an alley dedicated to public use. There is nothing to indicate a conditional dedication, save the deed made by Cabus to Finnegan of the tract in dispute. Fut as that deed ivas made more than 20 years after the dedication, we do not think it should prevail over the explicit statement of Oabus that he intended to dedicate the strip unconditionally to the public at the time he made his deed to Madden. His conduct clearly negatives the thought that he intended a conditional dedication. Yoorhees’ title under the sheriff’s deed was derivative, and not independent, and the fact that Madden failed to pay the mortgage indebtedness is of no significance.

2 Finding, as we do, that there was a dedication, we next look to see if there was such an acceptance thereof by the public as to complete the grant. As interveners purchased with reference to this strip being an alley, and made improvements with reference thereto-, neither Oabus nor his grantee may revoke the dedication as to them. Cook v. City of Burlington, 30 Iowa, 103; Cadle v. Railroad Co., 44 Iowa, 14; Leffler v. City of Burlington, 18 Iowa, 364; Fisher v. Beard, 32 Iowa, 352; Garstang v. City of Davenport, 90 Iowa, 359; Hull v. City of Cedar Rapids, 111 Iowa, 466. This proposition disposes of the appeal, so far as the interveners are concerned.

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4 Section 527 of the Code of 1873 provided, in substance, that no alley thereafter dedicated to- public use should be deemed a public alley “unless the dedication shall have been accepted and confirmed by an ordinance especially passed for such purposes.” As the plaintiff city is organized under a special charter, it is practically conceded that this statute has no application to it. But if it had, acceptance may be shown by other acts than the adoption of a formal ordinance. City of Waterloo v. Union Mill Co., 72 Iowa, 439; Byerly v. City of Anamosa, 79 Iowa, 207; Taraldson v. Town of Lime Springs, 92 Iowa, 189; Hanger v. City of Des Moines, 109 Iowa, 480; Burlington, C. R. & N. Ry. Co. v. City of Columbus Junction, 104 Iowa, 112. Acceptance may be inferred from public use, as well as from other acts indicative of an intent on the part of the city to treat the strip as an alley; and it need only be such as the public wants and necessities demand. The testimony shows that some work was done on the strip, by plaintiff’s street supervisor; that the public used it more or less as neccessity or convenience required; that it had the same use as other public alleys in the neighborhood; that the city platted the strip as a public alley, and that no taxes were assessed against it after the year 1881, save for the year 1895; and that this assessment was an oversight and mistake on the part of the assessor. These facts are sufficient to show an acceptance by the city. Hull v. City of Cedar Rapids, 111 Iowa, 466, and cases hitherto cited.

The decree is right and it is affirmed.