Kimball v. Shoemaker, 82 Iowa 459

Kimball v. Shoemaker

82 Iowa 459 | Iowa | 1891

Robinson, J.

I. Each plaintiff claims to own a part of the north half of the northeast quarter of section ‘ title to pv'op ■ erty: evidence. 33, in township 75 north, of range 44 west, in Pottawattamie county, and to . have been m possession thereof for many years; In November, 1888, the tracts claimed by them were inclosed with a wire fence. About the twenty-first day of that month the marshal of Council Bluffs, acting by virtue of a resolution of the city council, removed and destroyed a portion of it. The plaintiffs rebuilt it, and early in December, 1888, the defendant and others again destroyed it. The evidence shows that the plaintiffs had occupied the land in controversy for some time prior to the destruction of the fences, and there is no evidence that they had ever been dispossessed. It does not appear that they have now or ever had any other right to the land than the right of possession. The defendant claims that the land was duly platted by its owner as the Perry addition to the' city of Council Bluffs, and is no longer known as a government subdivision, but as lots, blocks, streets and alleys, according to the plat; that he is the owner of a large number of the lots, and that the persons with whom he acted also owned a large number of them; that . said lots were wrongfully inclosed by the fence destroyed; that in what he did the defendant only sought to protect his own property. It appears that the marshal destroyed so much of the fence as he claimed to be in the streets and alleys of the *461alleged addition ; that the plaintiffs rebuilt it, so far’ as practicable, on the lots, avoiding the alleged streets and alleys, and that the fence destroyed by the defendant and those acting with him was on that part of his land claimed to be platted lots.

The appellant insists that the plaintiffs must fail, for the reason that they seek to recover damages not because of a trespass upon lots, but upon a government subdivision of land. We do not find it necessary to consider the legal question thus raised by the appellant. There is no evidence that a plat was ever made by any persons authorized to make one. It is claimed that the land in controversy was platted by a corporation known as the “Council Bluffs and Nebraska Ferry Company,” but there is no evidence that such a corporation ever had a legal existence, and, if its existence be conceded, there is no proof as to its object, nor as to the powers with which it was clothed. The defendant offered parol, evidence in regard to the time of the alleged organization of the company, the property it owned, and the disposition made of it, but such evidence was properly rejected at the instance of the plaintiffs as being incompetent, and not the best evidence, no foundation for its introduction having been laid. Attempts were made to show the loss of some of the records of the company, but what such records would have shown in regard to its organization and powers does not appear. Having failed to show that the land in question was duly platted as an addition to Council Bluffs, and the power of the company to receive and convey title to the land not having been proved, the defendant has failed to show title in himself to any of the property he claims.

II. The plaintiffs were in peaceable possession of the premises in controversy. They had never been __ ' ejectment by force. ejected by legal proceedings nOr otherwise. The marshal had destroyed the fence so far as it was in what was claimed to be streets and alleys, but he did not attempt to interfere with the possession of the plaintiff as to the remainder of the premises. If the defendant had owned them with *462the right to immediate possession when he destroyed the fence, his acts wonld, nevertheless, have been wrongful. The law has provided a remedy in such cases, and will not permit the owner to enter into possession by stealth or force. Emsley v. Bennett, 37 Iowa, 16.

: III. The appellant discusses certain rulings of the court in regard to the admission of evidence, and 3. practice in oSe'cMons°tort: evidence. fhe rale adopted to ascertain the amount of damages. We need not refer more specific-a]jy to the alleged errors. It is sufficient to say that we discover no prejudicial error in any of them. Objection to the evidence as to the damages sustained was not made on the trial, and cannot be considered now. There is evidence to sustain the finding of the court as to the amounts allowed.

We have treated this case as though the full record were before us, but it is proper to say that there is no Statement in the abstract to the effect that it is a complete abstract of the record, the certificate of the judge appended to the bill of exceptions not having that effect. Eor that reason the judgments of the superior court could not have been disturbed even had the abstract submitted shown prejudicial errors. AFFIRMED.