87 Iowa 402 | Iowa | 1893
expend considerable time and labor in examining the transcript of over two hundred and fifty pages. The discrepancies
between the abstracts and transcript are not of sufficient importance to justify the disagreement that imposed this extra labor.
There is no question but that the defendant did obstruct travel at the place claimed, and that the plaintiff has such an interest as entitles him to prosecute this action. The contention is, whether a public highway exists at the place in question, either by reason of having been lawfully established or by dedication or prescription. The record upon which it is claimed a road was established shows as follows: On August 4, 1852, the petition of Ole Larson was presented for the establishment of road No. 27. “Court satisfied that the legal prerequisites had been complied with, commission was issued' to Ole Oleson Stola to view and report at September term.” At September term the time was extended “to first day of next October term.” “October 4, report of Ole Oleson Stola, commissioner, presented, with the accompanying field notes. Ordered for final action in sixty days.” “Sixty days having expired,
This, proceeding was had under the Code of 1851, which, after providing for the appointment of a commissioner to examine into the expediency of the proposed road, provides as follows: “Section 524. The time for the commencement of such examination shall be fixed by, the court, and, should the commissioner for any cause fail to commence on the day, the court may fix another for that purpose.77 No time was fixed for the commencement of the examination. Under section 527, if the commissioner did not report in favor of the proposed road, <£no further proceedings shall be had thereon.77 The evident purpose of requiring the time to be fixed was that parties interested might be heard, but as, in cases where the report was favorable to the location, parties had a right to b'e heard before the county court, we do not think such an omission would render the proceedings illegal.
IY. Proceedings were afterwards had with respect to said road 27 as follows: At a time, of which no date is given, Ole Oleson Stola petitioned for a commission to view a portion of road number 27 in sections 8 and 5. A commission was issued, and subsequently, “no remonstrance being filed, it was ordered to be established.” This record is indefinite throughout. It does not show what was asked, nor a compliance with the law in several respects. As it does not relate to the part of the road in question, it need not be further noticed.
In 1873 proceedings were had whereby a part of road number 27 in section 13 was vacated. In 1874 proceedings were had whereby the width of road number 27 was reduced between certain points, 'including the relocation made in 1870. In 1860 proceedings were had whereby road number 229 was established from the point where the Capoli and Winfield road crosses the line between sections 8 and 17, near the east end of said line, thence west along said line near to the west end thereof, and thence northwest to the Capoli and Wilson Ford road. The appellant says in argument that this is on the south line as claimed for road 27. Having no plat before us showing the entire length of road 27 with reference to section lines, we have difficulty in understanding the several partial plats found in the record. Road 229, being west of the east line of sections 8 and 17, does not touch upon the locality in question, but it does cover the same ground as road 27 on the line between sections 8 and 17. We think these records show that road number 27 was legally established in 1852, and legally changed in 1870 as to part thereof.
Y. The appellant discusses at length and with much care the correctness of surveys made to determine the location of road 27. The relocation made in 1870 commenced in the original survey, at or near where it crossed the line between sections 17 and 18, thence northeasterly to the line between sections 9 and 18, and thence east. It was at this last-named point that the defendant placed the obstructions. Whatever question there may be as to the location of other parts of the road, we are -in no doubt but that the obstructions were on the road as relocated in 1870.
Our conclusion upon the whole record is that the judgment of the district court must be reversed.