57 Iowa 121 | Iowa | 1881
I. The petition alleges that plaintiffs are the owners of lot 11, block 2, of Savery’s Park Addition to the city of Des Moines, upon which there are three buildings and other improvements; that north and west of the lots, are highways opened and dedicated to the public by Lyon, the grantor of Savery, long before the latter acquired the property and platted it as an addition to the city; that the street west of plaintiffs’ property was called Railroad street and the dedication thereof was accepted by the city and work was done and repairs and improvements were made by the city upon that part of the street adjacent to plaintiffs’ property; that the public have continuously used the street as a highway for more than twenty years and for more than ten years prior to filing the plat of Savery’s Park Addition, and that Savery knew, when he acquired the property, of the dedication of the land as a highway and that it had been used by the public for the time above stated. It is further averred that Savery by his acts and continued recognition of the highway is estopped to deny its existence. It is alleged that defendant has obstructed Railroad street by erecting a fence thereon and by enclosing a portion
The answer of defendant denies that Lyon ever dedicated or opened the streets in question, and avers that Lyon sold to the M. & M. Railroad Company the land which is described as Savery’s Park Addition, of which the realty in controversy is a part, and that he platted the land adjacent thereto, and Railroad street as platted by Lyon is wholly upon the land adjacent to Savery’s Park Addition, and is not upon that addition. It is alleged that the land in controversy had been at all times claimed as private property, and that in 1864 Savery purchased from Lyon the tract conveyed and platted it as an addition to the city. The land in controversy upon which plaintiffs claim Railroad street is located is not covered by a street according to Savery’s plat, but constitutes a lot. It is shown that this plat was filed in 1870, and it is averred that the city has never claimed that a street exists upon the land which is uninclosed, and has been taxed each year as private property.
II. The evidence tended to show that Lyon in 1853 executed a deed for a tract of land to the M. & M. Railroad Company for depot grounds. The deed is upon condition that if depot buildings should not be erected upon the property within three years the land conveyed should revert to Lyon. The highway in question is upon this land. The railroad company never erected the depot buildings contemplated in the conditions contained in the deed executed by Lyon. It is not denied that the title reverted to Lyon. In 1858 Lyon filed a plat of the laud adjacent to this tract as an addition to the city. The land so platted was upon the east, north and south of the depot grounds, but did not cover it. The land in controversy, being a part of the depot ground, is not covered by the plat filed by Lyon. The depot grounds were sold by Lyon to Savery in 1864 or I860. The evidence tends to establish a dedication of the land in question to the public for the purposes
The proposition of law announced by counsel may, for the purpose of this case, be admitted. But the record does not disclose the fact to which it is applied in counsel’s proposition. The land in question was not covered by the plat filed by Lyon; he made no attempt to dedicate it to the public in that manner. There was not, therefore, a dedication in pais of land which had before been dedicated by means of the recorded plat. A further statement of facts as disclosed by the record will make our position plain.
It will be remembered that the land adjacent to the depot tract was platted, while the depot tract itself was not covered by the plat. This plat shows Railroad street adjacent to plaintiffs’ lot to be 33 feet wide. This strip, 33 feet in width, was dedicated by the plat. The street is, however, 66 feet in width, the other strip of land covered by the street not dedicated by the plat was dedicated by parol declarations and by acts in pais. It will be seen that the street as to half of its width was dedicated by the plat; as to the other half by acts in pais. It follows therefore that- there is no attempt in this case to show a dedication in pais and apply it to the same lands dedicated by the filing of a plat.
Dedication in pais is sufficient to establish a highway in the absence of grant or dedication by matter of record. The fact that the county and city records all fail to show the existence of the highway cannot, therefore, defeat the dedication.
The taxation of the land in view of the fact that it was con
If counsel’s position as to the effect of taxation be correct it would be often difficult to maintain highways resting upon dedication in pais. Their location is usually indicated by no record and is therefore unknown to the assessors. A land owner, if unfriendly to the existence of a highway, could readily cause it to be assessed. In this manner the public could be deprived of the easement.
It cannot be claimed that Savery’s omission to recognize the highway in the plat defeated the easement held by the public, before and at the time he filed the plat. Even if plaintiff had assented to Savery’s plat, the public highway would still have had an existence. The question then, is this, are the private and individual rights of plaintiffs to the highway defeated by the fact that they hold under a deed which describes their lot according to the description in Savery’s plat? If it be true that plaintiffs have no remedy for the injury they sustained by the obstruction to the highway, it can be so only because they have no rights thereto. We then have the case of the existence of a public highway in which two citizens have no rights—a manifestly absurd result. If plaintiffs have rights in the highway the law gives them a remedy for the deprivation of the rights.
The fact that plaintiffs’ lot is described as a part of Savery’s Park Addition in no manner affects their title thereto or their
Had the highway been originally established by the plat filed by Savery and not by a dedication in pais before made, plaintiff could not insist that the street is different from the highway shown by the plat. This we understand to be the effect of Rowan’s Exrs. v. Town of Portland, 8 B. Mon., 235, cited by defendant’s counsel. This case does not touch the question before us.
We have discussed all the questions raised in the argument of defendant’s counsel, and have reached the conclusion that the judgment of the Circuit Court ought to be
Affirmed.