Marratt v. Deihl

| Iowa | Dec 15, 1873

Cole, J.

We need not discuss the sufficiency of the record entry, relating to the establishment of the Deihl road, nor the jurisdiction of the board to make such an order within sixty days after the report is filed, nor the effect of such order when collaterally attacked; nor need we discuss the question of the sufficiency of the findings of fact to show a road by prescription— the Kosta road — because, we hold, as a conclusion of law upon the findings of fact, that there was a public road by dedication at the points of the alleged trespass in this case.

As to the fact of dedication by the then owner, there is no controversy. But it is claimed that since the dedication, in both forties, was made under the mistaken belief that the Kosta road was a legal highway, it is not binding, and the dedicator may resume possession. We think otherwise. We do not, however, say that the dedicator might not, in such case, have relief in equity, upon doing equity, as, by placing the public m statu quo or the like. But the dedication having been fully made and accepted, and a large expense incurred upon the faith of it, and it having been acted upon for six years or more, we do not think it competent for the dedicator to resume possession and declare the dedication null and void by reason of such a mistake. In this conclusion we also give weight to the consideration that the supposed legal road was truly a de facto road, which might have soon become, by prescription, a road de jure • and the public, by accepting the dedicated route, and surrendering the inchoate but valuable right in the de facto road to the dedicator, has acquired such a light as that it cannot be thus summarily, if at all, ejected from that for which it gave some consideration. Another thought might here be mentioned, but to which we give but little consideration, which is, that the dedicator in each case had, for aught that appears, full knowledge of all the facts connected with the Kosta road, and his mistake was one of law and not of fact.

It is expressly found that while the dedicated road was being used by the public, the plaintiff became the owner of the land. "We hold that this use and possession by the public was, at least, constructive notice to the plaintiff of the right of the public, and thereby he was put upon inquiry and is charged with notice of all the facts such inquiry would have disclosed, to wit, the fact of dedication and its precise extent. He stands in the shoes of the dedicator.

Reversed.