Sarvis v. Caster, 116 Iowa 707

Sarvis v. Caster

116 Iowa 707

| Iowa | 1902

Ladd, C. J.- —

1 The appellees in an additional abstract, designated' by them an “amendment,” set out portions of the evidence, averring these to be a part of the record. If so, then the evidence must somehow have been properly preserved, and they cannot be permitted to raise the point that a transcript was not filed within six months from the entry of final decree. Connors v. Railway Co., 74 Iowa, 383. And it was not necessary to take an exception to the decree in order to have a hearing de novo. Dicken v. Morgan, 59 Iowa, 157.

*7093 *708II. Barnes City is a village of 250 inhabitants, and its principal highway is that running north and south* designated on the plat as “Broadway.” Improvements are being made, and the evidence indicates a substantial increase in population and industrial enterprise may reasonably be anticipated. The business houses-front on Broadway, but one or two blocks from the portion of the plat sought to be vacated. The land immediately south is shown to be suitable for residence purposes, and. one witness declares the village cemetery must, of necessity, be located ip that direction. It has been surveyed, and a plat prepared, though not filed. Hence, only a strip-25 feet wide, north of the dotted line between Wells’ addition and the land south, has been dedicated as Wells street.Cherry street extends no farther than Wells, but whether *709Broadway runs to the south, we have no means of knowing, save as ascertained from the plat. The statute provides that “if it shall appear that all the owners of the lots in the plat or part thereof to be vacated desire the vacation, and there is no valid objection thereto, a decree shall be entered vacating such portion of the plat and of the streets and alleys therein, and for all purposes of assessment such portion of the town shall be as if it had never been platted into lots; but if any street as laid out on the plat shall be needed for public use, it shall be excepted from the order of' vacation and shall remain a pub-, lie highway.” Section 920, Code. No objection whatever appears to the vacation of portion of the plat containing lots 15 to 21, inclusive, constituting one block, nor to that of Wells street. Plaintiff is owner of the entire block, and it is immaterial to others whether it remain subdivided. The owner west of Cherry does not join in the request that the street be closed. It would certainly abrid'ge his privileges to vacate a street upon which his, land abuts. Lorenzen v. Preston, 53 Iowa, 580, is not an authority to the contrary. A highway ought not to be vacated under this statute unless the immediate abutting owners -so request. So, too, we think there is a valid objection to the vacation of Broadway. The evidence shows that in all reasonable probability it will soon be needed for public use. The exigencies of the future, of course, cannot be known with certainty, but the claim of the objectors that- inevitably the main street of the village will be extended to the south, if not now open below Wells street, and that, if closed, it will necessarily have to be opened again later at the public expense has ample support in the evidence adduced' and the situation as shown.

The propriety of vacating a highway depends upon its utility and necessity. ’ But in estimating these in a proceeding like this we are not limited to the present. Ground left for *710streets in plats is intended for use in the future, and the streets ought not to be vacated so long as it is reasonably apparent that they will be necessary for public travel. This, we think, a valid objection within the meaning of the statute.

4 Appellant also insists that she has the absolute right to vacate, for that the street has been inclosed with her lots ever since the filing of the plat, and never has been accepted by the public. But a reasonable time is allowed for such acceptance, and what is such reasonable time necessarily depends on the situation and circumstances. Shea v. City of Ottumwa, 67 Iowa, 39; Incorporated Town of Cambridge v. Cook, 97 Iowa, 599; 9 Am. & Eng. Enc. Law, 50. See Taraldson v. Town of Lime Springs, 92 Iowa, 187. All the streets of a new plat are not ordinarily needed át once, and acceptance and use as soon as growth and improvement of the particular locality requires, if within a reasonable time, is all that is exacted. Briel v. City of Natchez, 48 Miss., 423; Meier v. Railway Co., 16 Or. 500 (19 Pac. Rep. 610, 1 L. R. A. 856); Town of Lake View v. Le Bahn, 120 Ill. 98 (9 N. E. Rep. 269). Lust when the addition was platted the record fails to disclose, but it was not later than May, 1897, and this action was begun in Eebruary, 1899. Broadway had been used by the public down to the street next north of Wells street; beyond that it had not been needed. We think the time within which the public might accept the dedication had not passed when this action was begun, and that it ought not to be vacated. The decree will be modified in accordance with these views, each party paying one-half of the costs in this court, and thé plaintiff those of the district court. — Modified and affirmed.