84 Iowa 344 | Iowa | 1892
The plaintiff is now, and has been since about the year 1869, the owner of the southwest quarter, of the southeast quarter, and the southeast quarter, of the southwest quarter, ■of section 19, in township 76 north, of range 16 west, of the fifth principal meridian. ' The defendant Edwards is the owner of the northwest quarter, of the southeast quarter of the same section. Between the tract of the plaintiff first described and that of Edwards there is a traveled road, which is claimed to be a duly established highway, thirty-three feet in width. The defendant Deck is supervisor, of the road-
I. In May, 1888, the court appointed a referee to try-the cause. On. the twenty-seventh day of September,
The record shows that on the twenty-eighth day of July, 1888, the plaintiff filed in the office of the clerk of the district court a motion for leave to amend hj~ petition and to file a reply, and on the same day an amendment to the petition and a reply were filed. On the tenth day of August, 1888, the defendants filed in the clerk's office a motion to strike from the files the amendment and reply. The motion was supported by affidavits made by the attorney who had managed the case for the defendant, and was resisted by a counter-affidavit made by an attorney for the plaintiff. It is~ admitted that the amendment and reply were filed. after the trial before the referee had been concluded, and before he made his report. It was contended on the part of the plai~tiff that the papers named were filed, on leave granted by the referee, during the argument of the case to him, and that when the papers were presented to him he directed that they be filed with the clerk. A statement, signed by the referee as an amendment to his report, and filed on the fourteenth day of July, 1889,' supports the claims of the plaintiff. These claims were denied in the affidavits made by the attorney for the defendants. The motion to strike was overruled by the court. The amendment and reply. were designed to conform the pleadings to the proof. The defendant knew that they were on file more than six weeks before the referee filed his report, and in ample time to have applied for a furthei~ hearing as to the• issue tendered by the pleadings, had he desired to do so. It may be conceded that the filing was irregular, and that it would have been better practice had the papers been filed before the close of the trial by the referee; but it does not appear that defendants could have suffe~red prejudice by the delay. Amendments to
It is claimed that the reply was wholly unnecessary, and we are inclined to think that is true; but it was not of a nature to prejudice the defendants, and may be disregarded. We discover no abuse of the discretion lodged in the district court in regard to allowing amendments. If it be conceded that the amendment to the report of the referee was filed too late to be considered, we should not be disposed to disturb the ruling of the court in overruling the motion to strike. The affidavit filed in resistance contained a showing of merit, denied, it is true, by the counter-affidavits, but, when taken in connection with the condition of the case before the referee when the amendment was filed, sufficient to sustain the ruling in question.
II. The report of the referee is vigorously assailed as lacking support in the evidence disclosed by the
In view of all the facts in the case, we reach the conclusion that the lines of the highway as originally established, and as thereafter aclopted or acquiesced in •by the public, including the people most directly interested, should not be disturbed. Smith v. Gorrell, 81 Iowa, 218; Orr v. O’Brien, 77 Iowa 254; Davis v. Curtis, 68 Iowa, 68; Davies v. Huebner, 45 Iowa, 577.
III. The shade trees in question are in the highway, but it is shown that if the line fixed by the plaintiff is retained there will be no occasion to disturb them. So long as they do not obstruct the road, nor prevent its necessary improvement, they should not be removed against the wish of the plaintiff. Code, sec. 989; Bills v. Belknap, 36 Iowa, 584. It is also shown that 'no ditch is now required in front of the premises of the plaintiff.
The report of the referee was in all material respects in harmony with the conclusion we have announced, and the exceptions thereto and the motion to set it aside were properly overruled. What we have said disposes of the controlling questions in the case. The judgment of the district court is aeeirmed.