120 Iowa 541 | Iowa | 1903
Lead Opinion
In 1871 the owners of a tract of land caused it to be surveyed, and map thereof made, acknowledged, and recorded. It was designated “Green and College Addition to Cedar Rapids.” Because of alleged defects in the title this dedication was ratified by plaintiff in 1880. That part of the map only which is essential to an understanding of the controversy is set out. The parcel of land in dispute lies between block fourteen and fractional block thirteen. The line crossing block thirteen is the section line, forming the south boundary of the proprietor’s land, that below belonging to one Calder, since deceased. The distance from the southwest corner of block fourteen, parallel with its south boundary, is a little less than eight feet. It will subsequently appear that there is nothing to show how far apart the two blocks áre. The city of Cedar Rapids, first formally asserted title to the disputed land in October, 1898, by ordering that a street be extended between blocks thirteen and fourteen from First to Second avenues, sixty feet wide, immediately west of block fourteen, that all west thereof to block thirteen be vacated'; that the portion vacated below the alley be exchanged with Calder for that within the sixty feet below the’ section line; and that the portion vacated north of the alley be sold to the owner of lot five in block thirteen for $600. Thereupon plaintiff began this action, asking that its title to the land be quieted. ....
The plaintiff’s title is conceded in the pleadings, unless lost by dedication to the public as a street. Did the acknowledgment and recording of the map amount to such
Strict compliance with such statutes ought not to be exacted. But they are to be followed substantially, and by this we mean that the divisions into which the tract of
Let us see if there is any sufficient explanation of these omissions and defects. Appellee contends that the width of - this strip and the lots in block thirteen may be ascertained by computation. Twelfth street is designated Polk street on the original plat, and has a set-by, according to the surveyor’s notes, of sixty feet at First avenue, and is declared therein to be eighty feet wide. But appellee argues that it is a continuation of a street sixty feet wide in the orginal plat of Cedar Rapids, and hence must have been but sixty feet wide below First avenue. If so, it ia said that lot one in said block must be eighty feet wide, the other lots sixty feet each, and this strip eighty feet, thereby explaining the appearance of the map. But the trouble with this arrangement is that there is nothing in the record to indicate that this street was to be a continuation of a street in the original plat, and such plat was not introduced in evidence. As other streets are specifically mentioned as being such continuations, the omission of Polk street as one of them indicates it was not included. But, even if included, the width stated cannot be rejected merely for the purpose of corresponding with a street ■elsewhere of the same name, supposed to be narrower. Nor will this court take judicial notice of the width of the
It is further argued that as the distance from the northwest corner of block fourteen to the northwest corner of block thirteen is but the sixty feet “set-by” greater than the south side of College Block, it must be six hundred and eighty feet, and that as deducting the frontage of the block fourteen leaves but three hundred and eighty feet, this must have been divided into five lots of sixty feet each, and eighty feet left for a street. But what evidence have we that the dedicators so intended? Nothing whatever, save the existence of the lines on the map. In no other respect was the statute followed. An estimate by measuring these lines and comparing with the scale of the map would not furnish reliable data from which to make computation. Palmer v. Osborne, 115 Iowa, 714; Minneapolis & St. Louis Ry. Co. v. Town of Britt, 105 Iowa, 198. Moreover, a glance at the map indicates that even a measurement of the lines would not produce this result, and show lots to be of the same width.
Nor can the width of the lots or strip, as suggested, be inferred from uniformity in the map; for some of the streets are noted as being of the same breadth as the original plat of Cedar Rapids, said by appellee to be sixty feet, and First avenue is one hundred and twenty feet wide. Some of the lots are sixty feet in breadth, others eighty feet, and still others one hundred feet. Effect should
.But appellee urgues that the certificate of the district judge attached to the plat precludes the college from asserting any part of it had not been dedicated. Without deciding the point, it is enough to say that no such certificate
Under the statutes the acknowledgment and recording-of the plat.is to be treated as equivalent to a deed in fee simple of the portion of land set apart to the public use.-
II. As argued by appellee, the lines in a plat may aid in ascertaining a common law dedication. But other evidence is necessary, and that is wanting. That one of
On what theory this can be said to show a purpose to dedicate a parcel not included and not made use of by the public is not explained. No more than retention of title is indicated; the purpose is undisclosed. Had the strip been in use for travel, this circumstance might have been important. ' As it is,' the intent to give away the land retained is not to be inferred from the fact of not selling it. If no taxes have been paid, it is because none have been levied. No obstacle appears to have been interposed thereto by the college. There is no evidence that plaintiff or its agents ever represented the disputed strip as a street in the sale of lots or otherwise. The animus dedioandi has not been proven.
Ill The heirs of George Greene partitioned the real estate left upon his decease, and the part described in the deed above mentioned fell to Elizabeth Greene. She conveyed the same to the Cedar Rapids Improvement Company. It may be, as appellee contends, that the college intended to convey the land in dispute to George Greene, though there is no proof from which this might be inferred but a mere intention to convey cannot be construed t >
Dissenting Opinion
(dissenting). — The majority of the court concede that a substantial compliance with the provisions of the statute is all that is necessary to render a plat valid, and, in my judgment, the plat in question sufficiently complies with the statutory requirements. It must be understood that what is set out in the majority opinion is only a portion of the plat. It appears from the record that the course of Fourteenth street (the next street northeast of Thirteenth street and parallel with it) is determined by four different stones indicated on the plat, and referred to in the surveyor’s notes accompanying the plat and recorded with it. Moreover, the direction of other streets is established by reference to connecting streets in the recorded plat of the city of Cedar Rapids existing at the time this plat was made and filed. There can be no difficulty, then, in determining, as a matter of fact, the courses of the different streets on this jdat; for the plat itself and the notes accompanying it give the number and width of lots in blocks eight, twelve, fourteen and fifteen, shown on the portion of thé plat copied, and other blocks shown on the original plat as introduced in evidence; so that it is plainly apparent that Thirteenth street is parallel with Fourteenth, and that the strip of land in controversy between block fourteen and fractional block thirteen is parallel as to its northeasterly line with Thirteenth street. The width of the other streets on the plat
We have no question before us as to any possible discrepancy between the width indicated by the lines of the ■ plat and the stakes as set in the ground. • If any controversy should arise as to the southwesterly boundary of this .strip, it will have to be determined as other questions are determined which depend upon the location of fixed monuments. The stakes placed by the surveyor to mark the boundary of block thirteen were fixed monuments in the •same sense as the stones described in the plat and notes. The plat is to be made according to a survey, and is to refer to monuents fixed by the surveyor. It is a map. The lines and figures thereof and the monuments therein .referred to represent something, and speak for themselves. .See Taraldson v. Lime Springs, 92 Iowa, 187. The plat and notes, then, do describe the strip of land in controversy ■.as to its dimensions and location, and this description by monuments would be sufficient to support a conveyance. The only question, then, is whether the method of design.ation thereof indicates that it is “set apart for public use” in such manner that the filing and recording of the plat '“is equivalent to a deed in fee simple” of this strip to the ■ city for a street, as provided in-Kevision 1860, section 1021. In other words, the controversy now is whether the strip of land which is conceded to exist, and which is marked on the plat as bounded on the northeast by block fourteen, ■and on the southwest by the so-called fractional block •thirteen, and which connects at one end with a street . marked on the plat as First avenue, and extends in a ■southeasterly direction to the limits of the plat, belongs to -the city of Cedar Eapids as a street by virtue of a dedication indicated by the plat, or whether, for want of any indication of an intention to dedicate, it is the property of
As to the objection that the street is not named, I have-only to say that that consideration does not seem to me to-be controlling. That it might be left to be named at a subsequent time, either by the dedicator or the city, I think too plain to admit of elaboration. In other words,. I cannot get away from the position that the plat shows-a strip of land designated as a street just as other strips of’ land in the plat are designated as streets or parts of streets; that the location of this strip is definitely established; and that looking at the plat as a whole, and the