188 Iowa 410 | Iowa | 1920
Upon the issues thus tendered, the cause was tried to the court, and a decree entered for the plaintiffs, as prayed. From this, defendants appeal.
In order to properly understand these conflicting claims and the evidence relied upon to support them, it is necessary that we have a knowledge of the location and situation of the respective properties and the public streets of the city.
Broadway is one of the principal streets, runs north and south, and is on the east side of the property in question. Indian Creek is on the west side of Broadway, and is between the lands owned by these parties and Broadway. It is a deep creek, and Broadway cannot be reached from plaintiffs’ property without bridging it. On the south of defendants’ property is a street known as Fleming Street. This runs east and west, crosses Indian Creek, and abuts on Broadway. Defendants’ property, over which this road is claimed, abuts on and is immediately north of Fleming Street. Plaintiffs’ property adjoins defendants’ property on the north, and is bounded also on the east by Indian Creek and Broadway. All the land now owned by plaintiffs and defendants was formerly owned by one N. W.
It does not appear that the public used any portion of this road beyond the north limits of the property so occupied by the defendants, and then only for the purpose of transacting business with the defendants’ grantors at this mill and at these yards. There is some testimony that one Albury, who worked for Mark Fleming in the mill or in the yards, passed over this road in reaching his place of work. The use to which this road, if it be a road, was put, is well exemplified in the testimony of one Weaver, who lived in the plaintiffs’ house in 1897, just before the plaintiffs bought it. He said:
“During the summer I lived there, people were coming to the brickyard, hauling wood and piling it there to burn brick, and coming in there and hauling away brick from the brickyard, and bringing grain and material to the mill, and hauling away feed, driving stock to and from the stockyards, and buying and selling cattle at the stockyards. The road was about halfway between the brick kiln and the mill, one on one side of the road and one on the other, and was about 30 feet east of the mill, measured from about the center of the brick kiln, and the track was used in going to the mill and kilns, and to deliver goods to Young’s house.”
Another witness testified that he had seen this place (meaning the road and territory surrounding it) frequently since 1893; that there was no bridge between Fleming Avenue and Elliott Street. (Elliott Street is north of Fleming Avenue.)
“People coming to this place traveled over the same road to the brickyard. The road was practically where it
It will be noted that the claimed road was not originally designed for public travel. It was not originally used for public travel. Its purpose was to afford access to the business conducted by the owners on their own property. To that purpose, it was devoted by the owners of the property, and for that purpose it was used by the public. Plaintiff, whose property lies north of the north terminus of the road in question, had a roadway from his home east about 200 feet towards Indian Creek, to a point marking the north terminus of the road over defendants’ property. There is no doubt that he traveled east on his road, and then south over this tract, known as the mill property, for more than 10 years. He claims as easement by prescription, — a right to compel the owners of the land, upon which this mill road was, to keep it open for his private use. What are his rights under the record made?
Section 8004 of the Code of 1897 provides:
“In all actions hereafter brought, in which title to any easement in real estate shall be claimed by virtue of adverse possession thereof for the period of ten years, the use of the same shall not be admitted as evidence that the
Mere proof of use, therefore, is not sufficient. The use may be permissive only. To invest the plaintiff with a right to a continued use, he must show something more than use for the statutory period, and two things more are essential: (1) That he claimed an easement as his right, and this must be established by evidence distinct from and independent of its use; and (2) that the party against whom the claim is made had express notice thereof, — that is, not of the use, but of the claim of right to use against the objections or protest of the owner. A right that starts permissively, and is not claimed as a right independent of permission, does not start the running of the statute. Plaintiff! has recognized this fact in the preparation of his case, and has sought to show, by evidence independent of the use, a claim of right to the use, and knowledge of the owners of the land of this claimed right.
It will be noted that the statute above quoted was adopted in 1873. It was not in any of the statutes preceding that, and added a new rule — a more stringent rule than was required prior to that time. So, therefore, decisions made prior to the adoption of this statute do not control in controversies of this kind, and are not entitled to be considered. The legislature made the paramount law. It is this that governs in all actions arising since the adoption of the statute. To meet the requirements of the statute, the record must show something, independent of user, that indicates that the plaintiff was claiming a right to the use of the street adverse to the owner of the land; that he was claiming a right to use it, and not that he was simply tak
“I lived continuously in the place from the time I bought it until two years ago. I used this road as a means of ingress and egress to my lots, and traveled it nearly every day, more or less. Delivery wagons came up that road to my place, and I went down the road to get my mail. I went to Mark Williams, when he owned the place, and got 15 or 20 loads of brickbats from him and put them at the foot of the hill on my place, and then I put dirt over that from the dirt on the bank. The brickbats were on the ground where Williams was going to put a kiln that spring, and he was glad to have them hauled off, as it saved him hauling. His men helped' shovel the brickbats into my wagon. The brickbats I put on the road that runs down on my place to where I turned to go on the Williams’ property. He told me I could have all I wanted, for he would have to haul them away.”
So it is apparent that the improvement, by the use of the brickbats, was not placed upon any part of the road now in controversy. There is no evidence that he ever verbally asserted to Mark Williams any claim of right to use this road, and never, until just before the suit was brought, did he make any such assertion to Norgaard, successor to Mark Williams. He says:
“I don’t think Mr. Norgaard and I raised the question, until this Italian fenced this lot up. That was about three years before the trial was had.”
As said in Jones v. Peterson, 178 Iowa 1389, 1394:
“Nor is there any presumption or inference of a dedication from mere use alone, but there must be some act or word or course of conduct on part of the alleged dedicator, fairly indicating his actual intent to give or grant the easement to public use. As said in a very recent case: ‘The owner’s acts and declarations should be deliberate, unequivocal, and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use.’ * * * An owner of property should not be held to intend an abandonment or surrender of it to
The same doctrine was repeated in O’Malley v. Lumber Co., supra. In McBride v. Bair, supra, it is said:
“Undoubtedly, defendant and those under whom he claims knew of the use, but user and knowledge thereof is not enough. There must have been a claim of right, independent of user, of which defendant or those under whom he holds had express notice.”
Applying the rule of these cases to the situation here, we have to say that the conduct of the defendants touching this right was entirely consistent with the absence of any intent to dedicate it to public use. The road was there, and used for their own purposes. It was used in connection with the business carried on by them upon the lots to which the road made access. There is certainly no evidence which manifests “a positive and unmistakable intention to permanently abandon this property to public use,” or to the private use of these plaintiffs. The best that the record shows is that the owners of this property did not object to plaintiffs’ using the road, so long as there was no bridge across Indian Creek at the point where plaintiffs’ property was situated. The best that can be said for plaintiffs’ use is that it was permissive, and this is not sufficient, under the statute, to sustain a claim of right to a permanent easement in the property — a right to be exercised against the will of the owners of the estate.
Upon the whole record, we think the court erred in finding for the plaintiff. Judgment and decree should have been entered for defendants. Its judgment is, therefore,— Reversed.