58 Iowa 389 | Iowa | 1882
The pleadings are voluminous. It is deemed unnecessary to state at length the several allegations therein, because we think the case can be satisfactorily disposed of by considering the several grounds upon which counsel for appellant claims the judgment of the Circuit Court to be erroneous. It is conceded the hearing in this court can only be had upon the errors assigned. The material controverted question is, as to the existence of a highway at the place where it is alleged to be obstructed, sixty-six feet wide.
Counsel for the appellant insist where the public acquires a highway by prescription or use, the width thereof is sixty-six feet, whether the whole of such width has been used by the public or not. In support of this proposition Manderschid v. City of Dubuque, 29 Iowa, 73; Larkin v. Harris, 36 Id., 93; Hobbs v. Lowell, 19 Pick., 405, and Angel on Highways, section 144, are cited.
A slight examination of these cases will show that they dh not sustain the foregoing proposition. Eor none of them hold that such highway must necessarily be sixty-six feet wide or of any other particular width. We suppose the claim .is made that such a highway must be sixty-six feet wide, because if it had been established in pursuance to the statutes in force in 1856 or 1868, it would have been that width, unless a different width was fixed by the authority'- directing its establishment. Code, of 1851, § 515; Eev., § 820. But we do not think it follows that a right obtained by use must necessarily equal in all respects that which might have been obtained under the statute. Besides this, under the statute a high
Counsel for appellees insist the public acquires no greater right than the actual use implies. That is to say the width of the highway cannot be greater than is actually used by the public. In support of the foregoing, Watrous v. Southworth, 5 Conn., 304; Walker v. Caywood, 31 N. Y., 51; Epler v. Niman, 5 Ind., 459, and Hannum v. Belchertown, 19 Pick., 311, are cited. The true rule, we think, and which is sustained by the authorities just cited, or some of them, is, that it is a question of fact for the jury to determine under the facts and circumstances. The court cannot, as a matter of law, say that a road acquired by prescription or use is of any particular width beyond such portion as is actually used by the public. That such a highway should not ordinaily be confined to the path, carriage or wagon road used, we can readily conceive, because there should be room for travelers to pass each other. Beyond this, however, we think, it is a question for the jury. From the southerly side of the traveled highway used by the public to the fence, which is claimed to be an obstruction, the distance must be at least twenty feet. It follows from what has been said that, under the established practice of this court, the finding of the court which has the force and effect of a verdict, cannot be disturbed; as we are clearly of the opinion there is evidence upon which the finding can be sustained, that the fence in question did not obstruct the highway, and that the public, by use and prescription, did not acquire the right to a highway sixty-six feet wide at the place where the alleged obstruction exists.
III. It is said the public acquired a right of way over the land in dispute by the consent, agreement and dedication of Davis and Strayer before and at the time they made the plats of their additions, by agreeing to recognize a highway there sixty-six feet wide, by making and recording the plats, and conveying and selling lots bounded on said highway and street.” It will be observed it is not claimed there was a statutory dedication. This question was decided adversely to the plaintiff in Strayer v. Stone et al., 47 Iowa, 333. 'When Davis and Strayer laid out their additions in 1868 they, between themselves, agreed Jefferson avenue should be sixty-six feet wide. But' shortly thereafter, and during the same •year, Strayer erected the fence in question which constitutes the obstruction complained" of. It is true, he asked the consent of the parties interested, and promised to remove it when he should be called on to do so. The evidence shows he afterward sold the premises to Stone & Angel, and that the latter supposed the fence just mentioned was on the line of the road or street. There is no evidence that the public had knowledge of such agreement, and there is no evidence tending to. show the public used the highway to any greater extent than before, or that any greater or additional rights were claimed by the public than before. ■ Of course, the public did not use or travel over the disputed strip of ground in consequence of or after the agreement, because it has been continuously fenced since a short time after the agreement was made, Davis and Strayer may be bound by their acts and declarations, but we cannot see that the public acquired any additional rights or assumed any obligations because of their acts and declarations.
Y. Stone & Angel were made defendants, and they demurred to the petition, which was overruled and a default entered against them. It is insisted the decision on demurrer became the law of the’ case, and the plaintiffs entitled to a mandarnos. The complete ■ answer to this, we think, is that no relief was asked against Stone & Angel. And the ruling on the demurrer and default could in no manner affect the city.
Affirmed.