City of Lake City v. Fulkerson, 122 Iowa 569

122 Iowa 569 | Iowa | 1904

Sherwin, J.

As the appellees have not argued the case,, we do not know upon what they rely to sustain the judgment below. The dedication of the street to public use seems to have been full and unreserved, and to have been recognized and accepted by the plaintiff, which was at that time an incorporated town. Under section 996, McClain’s Code, the acknowledgement and recording of such.plat was equivalent to a deed in fee simple of the land therein set apart for streets or other public use; and we have held that, where such an unrestricted dedication has been made, it does in fact vest an absolute title in the municipality, and that, upon the vacation of a street so conveyed, the title thereto does not revert to the original owner. McDunn v. City of Des Moines, 34 Iowa, 407; Pettingill v. Devin, 35 Iowa, 344; Day v. Schroeder, 46 Iowa, 546. That the town had the power to vacate the street cannot be questioned (McClain’s Code, section 623; Marshalltown v. Forney, 61 Iowa, 578), and its vacation upon the petition of the defendants estops them from now questioning the exercise of such power. Having conveyed to the municipality the fee of the street, it requires no argument to demonstrate that a subsequent conveyance of abutting lots could give the grantee no title to any part of the street. Milburn v. City of Cedar Rapids et al., 12 Iowa, 246.

It is clear, then, that the title to the street did not revert to either Fulkerson or any of his grantees, and that whatever rights he or they may have therein must be based upon some other ground. He pleaded an estoppel, based upon the fact that he had been ordered by the town to build a sidewalk along the east end of the vacated portion of said street, but his proof wholly failed to sustain this claim. Another ground of estoppel was that the vacated street had been assessed to him, and that he had paid the taxes thereon; but he listed the land for assessment as his own, and in such way as to conceal its location, and the evidence shows that none of the town officers knew it was assessed to him or that, he was paying taxes thereon. Moreover, he only paid the taxes about six years before this action was brought. There is nothing in either of these claims. See Hull v. Cedar Rapids, 111 Iowa, 466.

The appellee Yound pleaded that she had been in the actual occupancy of the land ever since the same was platted, with the knowledge and consent of the plaintiff, and that until this suit rvas begun it had never made any claim thereto or exercised any control thereover. There is but little, if any, evidence tending to support this issue, but she joined in the petition for the vacation of the street in 1892, and thus recognized the town’s title and control thereover, and she cannot now be hoard to -say that she has acquired title by adverse possession or by estoppel. City of Ashland v. C. & N. W. R. R. Co., 105 Wis. 398 (80 N. W. Rep. 1101). The title to the street having vested absolutely in the plaintiff upon its dedication to public use, and still remaining therein, it follows that it has the right and power to convey the same. Marshalltown v. Forney, 61 Iowa, 578; Dempsey v. The City of Burlington, 66 Iowa, 687; Spilzer v. Runyan, 113 Iowa, 619.

AVe see no escape from the conclusion that the judgment is wrong, and it is reversed.