24 N.W.2d 757 | Iowa | 1946
The ownership of the tract of land upon which is located the portion of the roadway here involved was acquired by appellants Frank Merritt and T.A. Merritt in 1934. Appellee's land adjoins this tract on the south and west. Appellants Don Minor and Fern Minor are tenants of appellants Merritt. For convenience the Merritts will be treated as sole appellants.
In 1931 the board of supervisors of Jones county decided to procure a gravel pit in appellee's land at a place about five hundred fifty feet west of appellants' land. Accordingly, Jones county condemned said gravel pit and a roadway thereto from a north-and-south highway. This roadway is 24 feet wide and about 1,880 feet long. Its west end is at the gravel pit. From said gravel pit the roadway runs east through appellee's land a distance of 550 feet to appellants' land and continues east an additional 1,330 feet through the south edge of appellants' land to said north-and-south highway.
In said condemnation proceedings the then owners of the land now owned by appellants made no claim for damages and were allowed none. Appellee was allowed and paid damages of $50 for road purposes; $83.40 for 139 rods of fencing; $133.33 for separation of a field, and $2,250 for the gravel pit of about two acres. In 1932 Jones county constructed upon said roadway a graveled road about 12 feet wide, with a bridge thereon over a creek in appellants' land and another bridge over a ditch at the entrance of the roadway to the north-and-south highway, which road and bridges since have been maintained by said county. *1202
Prior to the condemnation appellee had a winding roadway over his own land, with a bridge across the creek some distance south of the new roadway, and this route had been used by him in going to various points on his farm and by his customers in hauling gravel from the pit. After the county constructed the graveled road upon the condemned roadway appellee used the new road in going to different points on his farm and later removed his own bridge. In 1936 appellee, who apparently had not engaged in the gravel business since the condemnation, opened a commercial gravel pit adjacent to the pit of the county, and thereafter his various customers used the roadway across appellants' land for hauling the gravel purchased from appellee. The roadway was used also by trucks hauling gravel for the county, county workmen at the county pit, the county road maintainer, county officials, spectators, and occasionally a salesman. Appellants and their tenants frequently used the part of the roadway on their land to cross the creek and on several occasions used appellee's portion of the roadway to haul gravel from his pit to their land.
In 1944 appellants learned appellee claimed the roadway was a public highway. November 20, 1944, they caused to be served upon appellee a notice, as provided by section
Shortly thereafter appellants instituted this action praying that appellee be enjoined from using the roadway across appellants' land for purposes other than getting gravel for the improvement of streets and highways in Jones county and from inviting and causing others so to do. Appellee's answer asserted the roadway was originally established as a public highway; that it became a public highway by prescription and adverse possession and by dedication by appellants and their grantors, and that appellants are barred and estopped by the statute of limitations and their acts from securing the relief prayed. *1203
It is our conclusion that none of appellee's contentions is well founded and that the trial court erred in denying appellants the relief prayed.
[1] I. Appellee contends the roadway was condemned as and for a public highway. The statutes concerning the acquisition of gravel beds and roadways thereto appear in Codes of Iowa, 1931, 1935, 1939, and 1946, without material change. For convenience, reference will be limited to Codes of 1946 and 1939. Section
"Gravel beds. The board of supervisors of any county may * * * purchase or condemn any lands for the purpose of obtaining gravel or other suitable material with which to improve the secondary highways of such county, including a sufficient roadway to such land by the most reasonable route * * * and * * * pay for the same out of the secondary road funds."
Section
Section
Sections
Appellee suggests that some of the language used in the condemnation proceedings supports his contention that the board of supervisors condemned the roadway for a public highway. Since the roadway was condemned under section
[2] II. Appellee contends that "either the road in controversy is a public highway" or section
The rule of Bankhead v. Brown,
[3] III. Appellee asserted in his answer that the public authorities and county officials took and held adverse possession of the roadway, constructed and maintained a road thereon and kept the same open for the public and that the general public used the same; that appellants had notice of said matters and made no objection thereto but consented and acquiesced therein; that as a result thereof a highway was established by prescription and adverse possession and by dedication and that appellants were estopped by the statute of limitations and their said conduct from securing the relief demanded.
In determining said propositions the effect of the condemnation on the status and rights of appellants, the county, appellee, and other members of the public is of basic importance. By such condemnation the county acquired an easement for the purpose of obtaining gravel for its roads, the lands condemned to revert to the then owner of the tract from which taken when not used for that purpose for five consecutive years. Section
Appellee's contentions upon the propositions now under consideration are predicated in a large part upon the conduct of the county in constructing and maintaining, with public funds, and using and permitting others to use, the graveled roadway and bridges thereon, and the failure of appellants to object thereto.
Having condemned the roadway, the county had the legal right and even the duty to place and keep it in such condition that it would be usable for the purpose for which it was taken, to wit, to secure access to the gravel pit for the removal and transportation of gravel therefrom by the county and by others with the permission of the county. Whether or not the owners of the land consented to or acquiesced in such construction, maintenance, control, and use by the county is immaterial. The condemnation of the roadway gave the county control thereof for such purposes and deprived the owners of any legal right to object thereto. Hence, such matters afford no basis for the contention that a highway was established by prescription and adverse possession or by dedication or that an estoppel was created. The doing of things authorized by the condemnation may not be set up to defeat the terms and conditions of the condemnation. Mosle v. Kuhlman,
The roadway was open from the highway to the gravel pit and there is evidence of its use at times by appellee, sight-seers, and a few others, who were probably unauthorized. However, its use by others than county officers, agents, and employees appears to have been occasional. In any event, it was not frequent before appellee opened his commercial gravel pit in 1936, which was less than ten years prior to the service of the notice under section
Appellants made no objection to the unauthorized use of the roadway (if they knew what part of the use was unauthorized) until shortly prior to the institution of this suit, when they learned appellee claimed it was a public highway. Nor, until such time, were they required to do so. It is the rule that such user is presumed permissive and not adverse and hence *1207
affords no basis for a claim of easement or highway by prescription, dedication, or estoppel. Paul v. Mead,
Section
Nor is there substantial proof of conduct which would amount to dedication. The principal evidential basis of this contention is the failure of the appellants to object to the unauthorized use of the roadway until they learned appellee claimed it was a highway, the use by appellants of the portion of the roadway upon their own land (which we have already pointed out was their right), and the very infrequent (permissive) use by appellants or their tenants of the portion of the roadway on appellee's land.
Dugan v. Zurmuehlen,
"The act or acts must be such that the intention may be inferred or the owner estopped from denying an intention to dedicate his property to the public use. Jones v. Peterson,
As stated in Culver v. Converse, supra,
"In order to constitute a dedication, the evidence must be clear, satisfactory, and convincing, and the acts proved must not be consistent with any other construction than that of dedication * * * Mere permissive use of a way, no matter how long continued, will not amount to a dedication. The user is presumed to be permissive, and not adverse."
We need not determine whether or not appellants could, in any event, dedicate for highway purposes property which had been condemned and was held by the county for another purpose which might be deemed inconsistent therewith. There was here no proof of dedication nor of conduct estopping appellants from securing the relief sought.
[4] Although not pleaded by appellee, there is a suggested claim of estoppel based upon appellee's testimony that he abandoned the roadway across his own premises, removed his bridge, and bought equipment for his commercial gravel pit thinking the roadway was a public road to his gravel pit. Appellee was a party to the condemnation proceedings and was familiar therewith. His asserted error was due not to any conduct of appellants but to his own mistake as to the legal effect of said condemnation proceedings. No estoppel may be based thereon.
The cause is reversed and remanded with instructions for the entry of judgment in accordance with this opinion. — Reversed and remanded with instructions.
*1209All JUSTICES concur.