Wenzel v. Kempmeier

| Iowa | Apr 7, 1880

Adams, Ch. J.

adversepossession. The land was formerly owned by one Bersener. In 1863, and while he was the owner, he gave his written consent to the establishment of the highwa7 question, and it was accordingly established. It was not, however, opened until the acts complained of, in August, 1877. The land was fenced and constituted a part of Bersener’s farm until he sold it to the plaintiffs in 1870. After the land was sold to plaintiffs the fence was maintained until taken down by the defendants, for the purpose of opening the road. In the meantime the travel had gone a little south of this land, and through a certain stream which could he crossed by fording at the point where the travel did cross it, but which could he crossed, only by building a bridge where the established road crossed it. The road was opened with the view of building the bridge.

Notwithstanding fourteen years had elapsed, between the time the road was established and the time it was opened, we do not think that the public had lost its rights. During the first seven years the land was owned, and occupied by the person who had given his written consent to. the establishment of the road. It cannot be said that he commenced holding forthwith under a claim that the public had abandoned its rights, and we see nothing to indicate that he so held at any time. The fact that the travel had been diverted to find a fording place would indicate that it was a temporary shift resorted to in the absence of a bridge in the road as established, and we think that it must have been so considered. The instructions given are in harmony with the views which we have expressed, and those asked by the plaintiffs and refused are not. We think there was no error.

Affirmed.