178 Iowa 1389 | Iowa | 1917
Por a considerable period of time, to which further reference will be made, public travel bas, to a greater or less extent, followed a path extending from A, at the southwest
It is shown for the defendant that, on several different occasions, the road officers have done some grading at different points on the route, though some of the later work of that kind has been done since this controversy arose. It is also true that, where this line of travel crosses cultivated land, the tenants have left the line of travel unplanted, although there is a claim that the same line has not always been observed from year to year. It is doubtless true that, for 30 years or more, a considerable portion of the public travel has been diverted from the public road along or near the disputed path; but the contention by counsel for appellee that it has followed a line not varying “so much as a rod in width,” is distinctly not proven. But, taking the evidence on the part of appellee as literally true, we think it falls short of showing a dedication, either express or implied, or a public right acquired by prescription.
“In all actions hereafter brought, in which title to any easement in real estate shall be claimed by virtue of adverse possession thereof for the period of 10 years, the use of the same shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession shall be established by evidence distinct from and independent of its use, and that the party against whom the claim is made had express notice thereof; and these provisions shall apply to public as well as private claims.” Section 3004, Code, 1897.-
That- this provision is applicable to all cases where a claim is made that an alleged highway has become established-by prescription, has been many times decided. State v. Birmingham, 74 Iowa 407, 408; Zigefoose v. Zigefoose, 69 Iowa 391; Gray v. Haas, 98 Iowa 502; Brown v. Peck, 125 Iowa 624; Friday v. Henah, 113 Iowa 425; O’Malley v. Dillenbock, 141 Iowa 186; McBride v. Bair, 134 Iowa 661, 664. This statute was first enacted in the Code of 1873, and our decisions prior to that time must be read in the light of that fact.
Nor is there any presumption or inference of a dedication from mere use alone, but there must be some act or word or course of conduct on part of the alleged dedicator fairly indicating his actual intent to give or grant the easement to public use. As said by us in a very recent case:
“The owner’s acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to*1395 the specific public use.” De Castello v. Cedar Rapids, 171 Iowa 18.
See, also, O’Malley v. Dillenbeck, supra; and McBride v. Bair, supra.
any purpose to dedicate this road to the public. Indeed, unless they are to be charged with notice because their’tenants knew of the travel along this route, it appears very conclusively that, until about the time of the conveyance to .plaintiff, in 1911, not one of the prior owners ever saw the land, or knew that people were traveling over it elsewhere than on the duly established roadways. There is no principle of law by which we may impute to the owners the knowledge of their tenants, or even the knowledge of an agent having no authority to sell. Daniels v. Chicago & N. W. R. Co., 35 Iowa 129. To imply a dedication from use by the public, it must be shown that such use was with the knowledge and acquiescence of the owner, and for the period fixed by the statute of limitations as a bar to real actions. Onstott v. Murray, 22 Iowa 457; Manderschid v. City of Dubuque, 29 Iowa 73. The plea of dedication must be held to be without substantial support in the evidence.
Concerning the claim of a prescriptive right, as we have already indicated, the proof is clearly short of the standard set for such cases in Section 3004, Code, 1897, above quoted. Giving the evidence its utmost legitimate effect for the defendant, it shows no more than a long continued use of the alleged easement; but this does not fill the requirement that the adverse possession “shall be established by evidence distinct from and independent of the user.” Laying aside such evi
To repeat, the burden of establishing this proposition is upon the defendant. He has not only failed to establish it, but such fact is very satisfactorily disproved.
These conclusions call for a reversal of the judgment below. The plaintiff is entitled to a decree as prayed. The decree may be prepared and entered in this court, or, if not entered within 30 days, the cause will be remanded for a decree in the district court in harmony with this opinion.— Reversed.