180 Iowa 510 | Iowa | 1917
. “(1) The laying out of the road itself; (2) the grading of same; (3) the fencing of the road; (4) the fact that the width of the road was made 66 feet, the usual width of a street; (5) the paying for the grading of the road out of the common fund of the defendants; (6) the. erecting of a sign ‘To Des Moines,’ near the connection of the road in controversy with Fourth Street in the city of Valley Junction; (7) the erection of the sign ‘To Valley Junction,’ near the intersection of the road in controversy with the Grand Avenue or River to River Road; (8) the erection of a large sign showing the Murrow’s Second Addition plat along the roadway in controversy, on which plat were the words, ‘To Des Moines;’ (9) the plat of Murrow’s Second Addition filed of record shows the beginning of the roadway in controversy; (10) the plat showing the change in Grand Avenue to location of the new bridge across Walnut Greek, etc., shows the road in controversy; (11) a three or four-foot cut was made in one place while grading the road; (12) the testimony of two members of the city coun*514 cil of Valley Junction to the effect that Mr. McCurnin had said that he had graded the road and given it to the pub-' lie; (13) the negotiations with the city council to secure the approval of the plat to Murrow’s Second Addition; (14) the negotiations with the city council of Valley Junction with reference to the roadway extending from the new bridge across Walnut Creek in a northerly direction to the River to River Road; (15) the negotiations with the officials of the city of Des Moines with reference to changing Grand Avenue and the erection of the new bridge across Walnut Greek; (16) the selling of the greater portion of the lots in Murrow’s Second Addition after the roadway in controversy was opened to the free use of the public in November, 1912, and the leaving of the same open until on or about August 29, 1913.”
These facts, as we think, are fully established by the record, and lead to but one conclusion, and that is that McCurnin intended to dedicate to the public this way as a street or highway. True, he undertakes to minimize his negotiations for the changes made, denied having made the staiements attributed to him by the two members of the city council, and explained that his purpose in laying out the road was to ascertain whether there was any demand for acreage tracts, and if so, in what size, and to be better able to bring them to public attention, and that he had no intention of permanently establishing a street or highway, and never mentioned such a matter to his wife or Mrs. Henry. Everything he did, however, indicates a purpose to dedicate, and what was done is more persuasive of what he then intended than is his subsequent explanation. A more reasonable theory is that what he did Avas with the intention of establishing a highway, but that this was abandoned upon discovery that there Avas no demand for acreage lots, rather than that the way was experimental, and only intended to ascertain whether there
II. The only doubt we entertain is as to the other tenants in common. These joined in platting the subdivision. Mrs. Henry kept the accounts in detail of the receipts and expenses of the land. She denied having conferred any authority on McCurnin to dedicate or give away any of the land. But he Avas authorized to attend to all matters in relation to surveying and platting the addition. From, the time the road Avas opened, about November 1, 1912, it was the most traveled highway between the two cities, and, though not talked of to purchasers of lots in the addition, it Avas open prior to the sale of most of them, and, as a Avitness testified, “was one of the features that made this a desirable location.” Mrs. Henry and Mrs. McCurnin joined in paying the expense of fencing and grading. That is, these were paid out of the common fund of the three OAvners, but it is not clear that they were aware of this prior to the latter part of December. The former testified that she kneAV nothing of the road until December, 1912, when she was told that “it was put through to see if there Avould be any more sales for acreage or of the land, and, if so, it Avould be made a permanent road, and if not, it would be closed up, because we