187 Iowa 160 | Iowa | 1919
I. The essence of the claim of appellee is that the tax is void because, by platting and selling lots, the land sought to be taxed is a public highway.
II. This settles that there can be a public street without formal establishment. The next question is whether the court erred in holding that such streets were the subject of the attempted taxation.
True, the dedication by plat does not convey the fee title to the streets to the buyers of lots. But it does convey to them and- the general public an easement — the right to use the platted streets as streets. That is a sufficient alienation to invoke exemption from taxation. There is such exemption as to confessed highways, and yet such highways do not convey fee title to adjacent lot owners, and not more than the right to use as highways. See Dickinson County v. Fouse, 112 Iowa 21, at 23.
“The recording of the plat is a tender of the conveyance of portions set apart as streets and alleys for such use, to a municipality, and continues until shown to have been withdrawn.”
The Leonard case continues:
“To an incorporated city or town, the tender is in fee, * * * To an unincorporated village, it is the tender o! an easement in the lands set apart. * * * A plat amounts simply to a dedication — a solemn, written act of dedication. It is the solemn, written evidence of an intent to dedicate.”
We conclude that, notwithstanding that this plat did not deal with an incorporated town, it worked a common-law dedication.
III. To work an exemption from taxation, acceptance of the dedication is essential, and we now turn to the question whether the evidence sustains, the finding below that there was sufficient acceptance.
The acceptance may be so worked by the public, entering upon the land and enjoying the privileges offered,— briefly, by user. And when the user is relied on to raise a presumption of dedication, the duration of the use is wholly immaterial. 13 Cyc. 465, 466. And such acceptance may be manifested, among other methods, by long and uninterrupted use on part of'the public without objection. Steele v. Sullivan, 70 Ala. 589. It may be shown by acquiescence in the use of the land as a. public street for 14 years, with acts indicating acquiescence on paid of the owner. Hull v. City of Cedar Rapids, 111 Iowa 466.
A formal acceptance on part of the public of property dedicated to the public use is neither necessary nor practicable. City of New Orleans v. Carrollton Land Co., 131 La. 1092 (60 So. 695). And acceptance by the public is presumed, where it is shown that the claimed highway is of common convenience and necessity, and, therefore, beneficial to the public. It is stipulated that the claimed street is the sole means of access to many of the lots, and the principal evidence of its beneficial character will be the actual use as a highway, without objection by those who have occasion to use it. Guthrie v. Town of New Haven, 31 Conn. 308.
We find that the use of the dedication with and cooperation of the dedicator sustains the finding that there was acceptance.
3-a
There is a vigorous controversy over whether action on part of the county auditor works an acceptance. There is no occasion to decide it. One line of evidence establishing that there was an acceptance is as. good as a hundred.
3-b
The cases of City of Corsicana v. Anderson, 33 Tex. Civ. App. 596 (78 S. W. 261), Delaware, L. & W. R. Co. v. City of Syracuse, 157 Fed. 700, Incorporated Town v. Cook, 97 Iowa 599, City of Keokuk v. Cosgrove, 116 Iowa 189, Uptagraff v. Smith, 106 Iowa 385, at 388, Smith v. City of Navasota, 72 Tex. 122 (10 S. W. 414, 416), and City of New Orleans v. Carrollton Land Co., 131 La. 1092 (60 So. 695), are of no benefit to the appellee, .or, for that matter, to either party. They are either cases wherein it is held, because overwhelmingly shown, that there was no acceptance, or cases wherein acceptance is shown by acts of the municipality which are not found in this record. And so of 13 Cyc. 169. We see nothing relevant in Weikamp v. Jungers, 150 Iowa 292.
IV. The question of whether the defendants are under duty to maintain these alleged streets is foreign to the issues, and we will not decide it. See 13 Cyc. 467.
V. It is suggested by the appellees that, if we should not reverse, and so hold that no streets have been created by dedication, we would so hold in a cause wherein the buyers of the lots are not parties, and so might determine the rights of those who are not within the jurisdiction of the court. In view of the conclusions reached, that point needs no consideration.
VI. In view of the conclusions reached, we will not pass upon the question whether the tax in question is equitably apportioned according to benefits received.
We are of opinion that there was no authority to