47 Iowa 611 | Iowa | 1878
The original papers connected with the establishment of the road are lost. It is impossible, therefore, to determine whether .the petition asked for a road 66 feet wide or 33 feet wide. An order was made appointing a commissioner to make a view and report upon the expediency of establishing a county road, the route for which road was described in the order, but nothing .was said in regard to the width. The commissioner reported 'in favor of the road, except the north mile, and attached a plat to his report which showed the location, and upon the plat are these words: “Whole length of road reported, three miles, sixty-three chains and twenty-seven links. Road thirty-three feet wide.” An order was then made by the County Judge which is in these words: “ On this day this cause coming on for hearing, whereupon it being found that the commissioner heretofore appointed in this, case has reported in favor ¡of said road, and the court also finding that the said road is necessary, it is hereby ordered that said road, described as follows: Commencing in the Pleasant Grove, at the corner of sections 16, 17, 20 and 21 in township 71 N., range 3 W., and thence southwardly-on the nearest and best route until it intersects the Hull road in Flint River township, subject to the variations shown by the plat of the commissioner, be established, recorded and opened.” It will be observed that the order describes the location by fixing the point of commencement and by reference to the plat of the commissioner. Without the plat -the location could not be ascertained. By the reference made to the plat in the order, the plat is made a part of the order. Upon the plat the road is described as thirty- ' three feet wide. - The road which the commissioner recommends the establishment of is thirty-three feet wide. There is no evidence that he would recommend a wider road. The court recites that it finds “ that the said road is necessary.” ’ It must, we think, be understood substantially as saying that it approves the report and adopts the recommendation. In ■ Baying it finds said road necessary, it must be understood as "Baying it finds such road necessary. Indeed, as there was no
It seems to us that the court must be understood as having adopted the width reported. The order having been made with reference to the plat, and being incomplete and meaningless without it, we must presume that the plat was before the court when it made the order. With the plat before it and adopting it in the order, and knowing that it was to become a part of the record in the case, it seems unreasonable that the court should have designed to establish a road sixty-six feeh wide instead of thirty-three as described in the plat, and yet have used no language expressly from which such design can be inferred. We are of the opinion, .therefore, that the court designed to adopt the plat for description as a part of the commissioner’s report, including the words indicating the widtli as well as the words and lines indicating the location. It follows that in our opinion the District Court erred in holding that the road as shown by the record is sixty-six feet wide.
Reversed.