79 Iowa 360 | Iowa | 1890
The course of the alleged highway-in question is irregular, but its general direction is from north to south. It extends lengthwise through an eighty-acre tract of land which is owned by defendant. It is shown, and not denied, that he obstructed it by the building of a fence, but it is claimed that it was not a legally established public highway. The evidence tends to show the facts of the case to be as follows: An attempt to establish the alleged highway in the manner provided by law, was made in the year 1860. A petition was presented to the county court of Clayton county for that purpose, together with proof of service of a notice that a petition would be presented. . A commissioner named Brown was appointed to examine the route prepared for the highway and to act and report thereon. A report in favor of the establishment of the highway was made, and a day for the final hearing was fixed by the court. On the day so fixed, to-wit, May 7, 1860, the court ordered that the road be established, according to the survey and report of the commissioner, as a public highway. Prom that time until the year 1886 the road in question was traveled by the public substantially on the line alleged to have been surveyed by the commissioner, and was treated by the inhabitants of the vicinity and the road supervisors as a public highway. In 1866 defendant purchased the eighty-acre tract of land already referred to, and did so knowing that the road in question was claimed to be a public highway. About the year 1869 defendant employed a surveyor named Zearley to locate the road according to the commissioner’s report of the survey, and at another time prior to 1874 employed a second surveyor for the same purpose. Both of those surveyors located the road substantially on the line now in question. After the surveys were made, defendant treated the road as a public highway, fenced it from his fields on each side, and spoke of it as a highway. In 1884 a highway, commencing in the road in question, was established in jiart
The record of the county court in regard to the road, from the presentation of the petition therefor up to and including the appointment of the commissioners, is as follows: “February term, 1860. At a regular session of the county court, held at Garnavillo, said county, February 6, 1860, the petition of Jacob Thein and others was presented, asking the appointment of a commissioner to view and locate a road commencing at the guide-board near B. L. Mead’s, running south through sections 24 and 25; thence down the Turkey river bank, terminating near John Garber’s mill. Affidavit of John Thein, signed and sworn to, of posting up
A petition and notice filed on the date of the foregoing record were introduced in evidence. The notice stated that a petition would be presented at the “February term of the county court of Clayton county, Iowa,” but did not specify the place where, nor the year in which, the presentation would be made. An affidavit by Jacob Thein, and sworn to by him before the county judge, was attached to the notice. It recited that the affiant posted “ one notice on the court-house door, and three notices in three public places in Volga township, of which the. annexed notice is a true copy,” but failed to state when the posting was done. The proceedings to establish the road in question were had under the provision of the Code of 1851. Section 519 of that Code required the notice to be posted four weeks previous to the presentation of the petition. The record proof of posting was not sufficient. It is contended by counsel for the state, however, that it should be presumed that there was other proof than the affidavit of Thein, competent and sufficient, which showed legal service of the notice. The cases of McCollister v. Shuey, 24 Iowa, 363; Woolsey v. Supervisors, 32 Iowa, 130, and Carr v. Fayette County, 37 Iowa, 608, are cited as supporting that claim. Those cases held that where the record recites that due service of the notice was made, or where the record is silent as to that, and nothing to the contrary appears, it will be presumed that proof other than that disclosed by the record, when that is not sufficient, was offered, and acted upon by the court. But the only fair construction to be placed upon the record in this case is that the court received no proof of service other than the affidavit of Thein. That alone is referred to as proof of service. The court attempted to identify the proof upon which
It is said that “the presumptions which the law implies in support of the judgments of superior courts of general jurisdiction only arise with respect to jurisdictional facts, concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment is made. When, therefore, the record states the evidence, or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.” Galpin v. Page, 18 Wall. 350. The rule would apply with at least as much force to courts of inferior jurisdiction. Morrow v. Weed, 4 Iowa, 87.
notice referred to was that to which the proof of service already considered was " attached. Section 520 of the Code of 1851 required the notice to state the time at which the application would be made to the county court. The one in question was fatally defective, in
Y. Other questions are discussed by counsel, but, since the defendant was acquitted in the court below, it is not necessary to determine them. The judgment of the district court is Reversed