Christopherson v. Incorporated Town

Deemer, J.

i. municipal coestreets°ajrfci: aipe^sessÍonr:Se cepíaeafcatión: estoppei. The ground upon which the original town of Forest City is located was platted in September of the year 1856. By the terms of dedication, the lots in question were 132 feet lonS by 66 feet in width, the streets were 66 feet and the alleys 33 feet in width, and the “relative situation of lots, streets and alleys shown by plat, corners desiguated as the law directs.” On this plat is shown what is known as Block 60, bounded on the east by Eighth Street, on the north by I Street, and on the south by G Street. There was a vacant space left on the plat to the west of the property in question, which was not marked in any' way. To' the westward was what is 'known as Schoolhouse Square. The block was divided into lots, numbered 1, 4, 5 and 8, and between Lots 4 and 5 was an unnamed strip, approximately 33 feet wide, which is now claimed by defendant as an alley. This alley, if it was one, did not run *896 through the schoolhouse block; but there was a similar strip in the block immediately to the east, corresponding with the one through Block' 60.

The situation is shown upon the plat hereto attached.

Why the plat was made with such irregular blocks and streets is not disclosed by the testimony. The town of Forest City was not incorporated until the year 1878. Plaintiff purchased her property from one Felter, in the year 1883; and, while he (Felter) owned it, he had the county surveyor locate the boundaries of his lots and set his fences accordingly. When he sold to plaintiff, he pointed out the boundaries, according to the fences set by him, which, down to that time, had not been questioned. The entire block was, at that time, fenced on all four sides, and there was nothing on the ground indicating that there was an alley running east and west through the strip. Plaintiff’s deed, however, described .the property as Lots 1, 4, 5 and 8, in Block 60, Forest City, and the deed to Felter contained the same description. After plaintiff purchased the property, she went to the county surveyor, and was informed that the fences then around the block marked the true boundaries of the land. - Thereafter, plaintiff improved her property with reference to these fences, *897 erected a dwelling house, a barn, and some other outhouses, filled in and graded the lots, which were at some places low and swampy, and set out trees and shrubs. In the year 1900, plaintiff sold Lots 5 and 8 in said block to one Holmes, and Holmes thereafter sold the property purchased by him to one Hewitt, who is now the owner thereof, the description being the same as in the deed to Felter. Hewitt was desirous of erecting a garage on or near his property, and discovering, some time in the year 1912, what he thought to be an alley between his property and that belonging to plaintiff, he went to the city council to have this alley opened. The council then concluded to do this, and at the same time to open the street west. This action followed.

I. In the petition, plaintiff describes her property as follows:

“Commencing at a point 26 feet west and 361feet south of a certain stone buried in the center of the intersection of Eighth and I Streets of said town; thence west 109.5 feet; thence south 166.5 feet; thence east 109.5 feet; theneé north 166.5 feet to said point of beginning. Said premises including Lots 1 and 4 of Block 60 of the original plat of said town.”

This description was evidently made upon the theory that, if there be any property outside the lots deeded to her, Nos. 1 and 4, she is entitled to it by adverse possession, acquiescence, or estoppel. We have disposed of the controversy as to the north and west lines, and need refer only to the east and south ones. Plaintiff practically concedes that there was a tract of land between Lots 4 and 5 in Block 60 which was not covered by her deed, although she says, and there is testimony to the effect, that she did not know of this until about the time she sold Lots 5 and 8 to Holmes, and that she did not until that time actually know that there ever was an alley or strip running through the block which was dedicated for an alley or other public purposes.

*898

2. Municipal corporations : streets and alleys : long- possession under mistake as to boundary: improvements : estoppel. As to the east line, she, of course, knew there was a street at that point, but she thought the line was the fence which Felter pointed out to her, and did not know to the contrary until about the time this litigation was commenced. There was, as we have said,a street which was open to travel on that side of the block, and the only question was as to the true line. She is in no position to claim any part of that street through adverse possession, for the statute of limitations does not run against the government or any of its instrumentalities, including a town or city. Quinn v. Baage, 138 Iowa 426 ; City of Waterloo v. Union Mill Co., 72 Iowa 437 ; Taraldson v. Incorporated Town of Lime Springs, 92 Iowa 187 ; McElroy v. Hite, 154 Iowa 453 ; Bridges v. Incorporated Town of Grand View, 158 Iowa 402, 404 . The town, however, may, by conduct, estop itself from claiming to the true line, as by permitting the owner to make valuable improvements with reference to another line, without making any objections thereto. But as a rule, the erection of fences, or the planting of "shrubbery or trees, will not be such an improvement as is here referred to. Johnson v. Town of Shenandoah, 153 Iowa 493 ; Bridges v. Grand View, supra.

3 Municipal COK-streets°ana:aitfon • accept-" anoe‘ If plaintiff is entitled to maintain a line which is not the true one, against the city, she must show something else, aside from the fact that she or her grantor built fences, and se_t olrt treeS anl^ sfrrtlks. She claims, however, that the line as claimed by her is the original and true boundary line, and, in addition thereto, claims that, before building some sidewalks and making some other improvements, the defendant town, through some of its officers, agreed to the line as now claimed. With reference to the alley, it is said that the town never accepted the dedication thereof; that it never was opened or improved, save as she caused the land to be filled, as she did all of her property adjacent thereto, and reclaimed *899 the same; that, even if an acceptance is to be implied, the town, by inaction and failure to open or improve the same, abandoned the alley; and that she is entitled to the whole thereof, on these grounds. While there is no doubt that the original dedicator of the town plat intended to dedicate to the public an alley between Lots 4 and 5 in this Block 60, and did all that was necessary to this end, yet it is well settled that acceptance on the part of the public is essential to complete the dedication. Blennerhassett v. Incorporated Town of Forest City, 117 Iowa 680 ; Burroughs v. City of Cherokee, 134 Iowa 429 ; Incorporated Town of Cambridge v. Cook, 97 Iowa 599 ; Uptagraff v. Smith, 106 Iowa 385 ; Bradford v. Fultz, 167 Iowa 686 ; De Castello v. City of Cedar Rapids, 171 Iowa 18 . This acceptance may be by ordinance, or by acts and conduct indicating an implied acceptance; but something must be done, indicating an intent on the part of the public to treat the dedication as acceptable to it. Here there was nothing of that kind.

Before the property was filled in, with earth taken from the street west of the property, it was low, swampy and wet at the east end of the supposed alley, and the ground rose -rather steeply, until it reached the courthouse square, where there was an abrupt rise of the surface. The alley could not be used in its then condition, and it was not fit for use as such until plaintiff filled in the swampy and wet places. Even then, no one made any claim to an alley, until the man owning Lot 5 saw an opportunity to use it. He stirred the town into action, but this was not until more than 30 years after the dedication, and more than 20 years after the alley had been fenced as a part of Block 60. Such a delayed acceptance is not regarded as sufficient in law. See Burroughs ease, supra.

*900

pobamons: streets and alleys : abandonment: estoppel provements” fo “color oli1^ tltle'

*899 Again, the town stood by and saw the plaintiff filling in the low places in the block and redeeming it for cultivation; saw one of plaintiff’s grantors build a barn .across the east end of this supposed alley; and, although it at all times had *900 notice that plaintiff’s grantor and plaintiff herself were claiming’that all this property belonged to them, it made no objections to the improvements, but permitted the then owners of the block to treat it as if there were no alley there. In such circumstances, an estoppel arises against the town which forbids it to claim that the property is an alley, and to assert that it may accept the dedication at any time it chooses, no matter what the conduct of the owners of adjoining property, who think that the property' is theirs and claim it-as of right. Johnson v. Town of Shenandoah, 153 Iowa 493 ; City of Davenport v. Boyd, 109 Iowa 248 ; Zollinger v. City of Newton, 172 Iowa 352 . It is not essential that plaintiff’s deed should cover the disputed strip; m fact, if that were the rule, there never could be an estoppel or adverse possession in any case, save where there was an apparent record title to the land. Claim of right is sufficient, although there be no color of title. See cases hitherto cited, and Goulding v. Shonquist, 159 Iowa 647 . Even if plaintiff had no title, she was in possession of the property under claim of right, and is entitled to have that possession protected as against one having no right or interest in the matter.

We shall not set out the testimony in support of our conclusion. It is enough to say that we find no acceptance of the alley bn the part of the town, and, even if such acceptance might be presumed, the town has so conducted itself as to indicate an abandonment of the same, or has estopped itself from, claiming the alley.

5. Municipal corporations : streets and alleys : dedication : acceptance : presumption. II. As to the east line or boundary of plaintiff’s property, the case is somewhat different. There was an acceptance by the town, and recognition by all the owners of the property, of a street east of the block. The question now is as to the width of the street. The acceptance is presumed to be, and was, in fact, as broad as the grant. *901 There is no estoppel here, because neither plaintiff nor her grantors made any such improvements as would estop the city from claiming that the street was as the-plat stated it, 66 feet in width. Nothing was done by plaintiff or her grantors in the way of improvements, except to set out fences and trees, and perhaps some shrubbery at the south end of this east line. No permanent improvements were made which called for any protest from the city. We haA^e many times held that the building of fences and the setting out of trees do not amount to an estoppel. See cases hitherto cited.

The only difficulty in the case with reference to this east line arises out of the fact that it is somewhat difficult to tell from the testimony just where this east line is, as established by the dedicator. Taking the entire testimony with reference to the surveys and the use made of the property, we are constrained to hold that fhis east line was sufficiently identified Avith reference to known'and established monuments, surveys and plats, and that plaintiff had set her fences and planted her trees in the street; that the city is entitled to have it opened for its full Avidth, to wit, 66 feet. This takes something from the plaintiff which she has already enclosed; but, as the statute of limitations does not run against the town, and there is no estoppel, the town is entitled to have this street opened to its full Avidth. Quinn v. Baage, supra; Schultz v. Stringer, 168 Iowa 668 .

The trial court, as we think, correctly fixed all the lines save that on the south-end of plaintiff’s property, where there is supposed to be an alley. We think there is no alley at this point which the defendant may claim, and to this extent, the judgment must be modified. Each party will pay one half of the costs of this appeal. The decree must be modified to the extent indicated, and for this purpose the cause will be remanded. — Modified and Remanded.

Evans, C. J., Weaver and Preston, JJ., concur.