45 Iowa 574 | Iowa | 1877
I. The original road as established in 1846 was some four miles in length. In 1857 another road was •established, which runs some eighty rods on the same line, and the part of the original roád now in controversy extends, from the line common to both roads, east, a distance of about ' one mile.
It seems to be conceded that the original road as established in 1846 was sixty feet wide.
The evidence fairly shows that the part of the road now in controversy has never been traveled by the public, but that the'travel has been at points somewhat distant from the surveyed line.' It has never been worked or put in condition for use, but the travel has passed over the open prairie at will, without regard to the surveyed line. The road as established is on a section line, and more than ten years before the com
No obstructions, by fence or otherwise, were placed on the south thirty feet until some short time of, and within ten years prior to, the commencement of the suit. There were other parts of the line not now in controversy which were inclosed many years ago.
One of the adjoining owners of land erected a house which is partly situated on this part of the line.
The. plaintiff claims that the defendant should be ordered to open the road to the full width of sixty feet instead of only thirty, and the defendant insists that, because of the statute of limitations, and the alleged abandonment of the road by the public, there is now no legal highway* and that no part thereof should be opened.
We are not now discussing the rights of the public in a highway acquired by prescription or dedication. This highway was established by the proper legal authority. Mere non-user of an easement of this .character, and acquired in this manner, will not operate to defeat the fight. Especially is this so when there is no use of the premises adverse to the right in the public. Barlow v. The Chicago, Rock Island & Pacific R. R., 29 Iowa, 276; Noll v. The Dubuque B. & M. R. R. Co., 32 Id., 66.
II. It is also claimed by the defendant that the establish
There is a want of harmony in the adjudicated eases upon this subject. Quite a number of cases declare that the public may lose their right to streets, roads, and other public places by long continued adverse occupation. See Washburn on Easements and Servitudes, 669-70, and authorities there cited.
On the other hand, the Supreme Court of Pennsylvania and of other states have held that no adverse possession and use of a public highway by individuals, however long continued, will give a title as against the state or the general public, as the statute of limitations does not run against them. Com. v. Albner, 1 Whart., Pa., 469-488; Philadelphia v. Railroad Company, 58 Pa. St., 253; Simmons v. Cornell, 1 Rhode Island, 519; Jersey City v. Morris Carnal Company, 1 Beasley, N. J., 547.
In the case of The City of Pella v. Scholte, 24 Iowa, 283, it was held that ten years adverse possession of the whole of a public square, with the knowledge of the city, would bar an
It will be readily seen that a distinction is here made between the rights of a municipal corporation and those of the state or the general public.
We believe the weight of authority is that the statute does not run against the general public because of the adverse possession of a highway established in the manner prescribed by law. Whether this rule should prevail in this State we. do not determine; and yet we believe there are cases where the non-user has continued for such a length of time, and private rights of such a character have been acquired by long continued adverse possession, and the consequent transfer of lands by purchase and sale, that justice demands the public should be estopped from asserting the right to open the high-WB¡y.
The first requisite to establish such estoppel should be that the adverse possession should continue for ten years, by analogy to the statute of limitations. Then it should be shown that there was a total abandonment of the road for at least the period of ten years.
In- the case at bar there was an entire non-user of that portion of the road in controversy from the year 1846 to the present, being a period of nearly thirty years. It was originally four miles in length; a greater part of the line has been fenced
On the other hand, as the south half of the line has been-but recently inclosed, no claim of the analogy furnished by the statute of limitations can be made. The adverse right to the land occupied by the road acquired by inclosing the north -half extended only to that portion. Nothing can be claimed by way of constructive possession. It must be actual, open, visible and notorious, and limited to the inclosure, where adverse possession is claimed because of inclosure. Applying these, principles to the case, our conclusion is that it should be affirmed upon both appeals. Each party should pay one-half the costs in this court.
Affirmed.