141 Iowa 186 | Iowa | 1909
On the line of the defendant railway company’s road in Dallas County, Iowa, is a small station known as “Bouton.” The railway there extends east and west. The station is on the south side of the track, and immediately west of the platform the railway yard is crossed by the principal street of the village extending north and south. On the north side of the right of way, and immediately west of the north and south street, the railway company owns an additional strip about one hundred and twenty-five feet in width and eight hundred feet in length, the east portion of which, in part at least, has been occupied by the defendant lumber company with its sheds and other conveniences of a lumber yard. Immediately north of the strip above described is a tract of unplattedQ land owned by the plaintiff, whose residence is upon a lane extending north from the north line of said strip at a point some forty rods west of the north and south street first above mentioned. Between the lane on which plaintiff resides and said first-mentioned street, where all the business houses are located, there is no direct convenient connecting street or highway, unless- it be the one in controversy, which we now undertake to describe. It is the claim of plaintiff that there is a public way sixty feet in width extending along the line between his land on the north and the railway company’s premises on the south; the partition line between them being the center of such way. He alleges that the same was established as a public road first by the consent and dedication of himself and the railway company, and that soon thereafter a petition for its establishment by public authority was filed with the county auditor, who appointed a commissioner to
From this statement it is at once apparent that the question whether there is any evidence in the record to support a finding of the- establishment of the alleged road by some act or agreement of dedication on the part of the railway company is of fundamental importance. A reading of the entire record convinces us that in this essential respect the plaintiff’s case is fatally deficient. The only evidence presented which is claimed to show any express agreement to dedicate this road as a public way is to be found in an alleged conversation between plaintiff and one Gibson, division superintendent of the railroad at that point, which is said to have occurred about the year 1897. Plaintiff’s own testimony on-the subject is as follows:
I lived in and about Bouton in 1867, and up to the . spring of 1901, when I moved to Perry. Was in a gen*189 eral store business, grain, lumber, and tile business, and did considerable amount of shipping with the railway company and was personally acquainted with the ’officers of the company that visited that town. About the time when I was in business I had some conversation with Mr. Gibson, division superintendent of the Milwaukee Railway Company, in reference to the highway. When we first talked about this proposed road, we also contemplated building a lumber shed next the track, north of the side track and west of the highway going north and south. The railroad company, or Mr. Gibson, they objected to the shed going through at that' place as it would cut them out of entering their ground west of that shed. They used the ground west of the shed for loading grain, and general purposes, and this shed, if built where we finally did build it, would cut them out from the use of that ground. To overcome that, I proposed to lay out this road going west so they could use it and get up to their grounds and the depot could use it. I can not give the exact words of Mr. Gibson’s reply. He thought it would be all right. And on cross-examination he repeats: I do not know just the language, only I said we better establish a highway. I knew the company claimed to own that land. I do not think I asked Mr. Gibson to sign the petition. I showed the petition to the agent, but did not ask him to get Mr. Gibson to sign it. I do not remember the exact language of the conversation with Mr. Gibson, but the substance was, ‘Well, we will establish a highway/' meaning the railroad company and us. I did not ask him, nor in any manner attempted to get him, to establish that highway, nor to sign any petition, nor take any steps toward it. I knew that Mr. Gibson would' not sign any papers and would not do anything in the way of making a highway or giving any consent to highways, but when he knew it was going through, he offered no objections.
This is the sum total of the plaintiff’s ease so far as any alleged express agreement of consent on the part of the company is concerned. That plaintiff himself did not rely on this conversation as a sufficient dedication is shown by the fact that he soon followed it up by a petition to
Under our statute (Code, section 3004) the mere use of such way by the public, however long continued, can not be construed as adverse to the owner of the title. That a highway may be dedicated by parol, without deed or other written evidence thereof, is to be admitted; but it is a cardinal principle of the law on this subject that the intent to dedicate must clearly appear, and the acts and circumstances relied on to prove such intent must be unequivocal and convincing. Morrison v. Marquardt, 24 Iowa, 35; Harris v. Commonwealth, 20 Grat. (Va.) 833; Graham v. Hartnett, 10 Neb. 511 (7 N. W. 280); McMannis v. Butler, 51 Barb. (N. Y.) 436; Jones v. Phillips, 59 Ark. 35 (26 S. W. 386); City v. Railroad Co., 152 Ill. 561 (38 N. E. 768); Weiss v. Borough, 136 Pa. 294 (20 Atl. 801). The evidence on the part of the plaintiff does not measure up to this standard. It follows of necessity that the claim of a statutory establishment of a road having been withdrawn from the jury by the trial court, and the showing’ made' being in the judgment of this court insufficient to sustain a finding of dedication by the railway company, a new trial must be ordered.
There is very serious question whether, assuming the existence of the road as claimed by the plaintiff, he has suffered any such special damage from its alleged obstruction as entitles him to maintain an action for damages; but, in view of our conclusion upon the matter of dedication, we do not undertake its discussion. The result reached renders it unnecessary to rule on appellant’s motion to strike the amended abstract.
Eor the reasons stated, the judgment appealed from is reversed.