Overman v. May

Miller, J. it was agreed, on the trial, that plaintiffs were the joint-owners of the premises upon which the alleged trespass was committed, except so far as the proof might qualify such ownership; that the city of Cedar Falls is a city of the second class, and that the locus in quo is within its corporate limits; that the defendant, at the time of the alleged trespass, was street commissioner of said city, and that as such it was his duty to repair and keep the streets and highways in the city in order. Evidence was introduced tending to show that near the place where the stone were taken the public had acquired [96] a right of way by prescription; that a former bridge had been erected across the river on the highway, and that the present bridge was erected with the consent of plaintiffs, or some of them. Plaintiffs, however, while denying that ^the highway where the new bridge now stands, and where 1the stone was quarried by defendant, was ever acquired jyy the public by prescription, gave in evidence a deed from themselves to Black Hawk county by which they quit-claimed to the county “ for the purpose of constructing a road and road-bridge thereon, and for all uses and purposes connected with the use and construction of said road and road-bridge, the right of way for said road and road-bridge over and through” the premises upon which the stone was quarried by the defendant. In this deed and the grant therein contained is a clause, “ excepting and reserving therefrom, however, che right to quarry stone in the river bed; provided, however, that;no stone shall be quarried to the damage of the piers of tl?e bridge.” This deed is dated December 13, 1866, and was delivered to one of a committee of tpe board of supervisors having the supervision of the building of the new bridge, and was found in the custody of thl'ccounty auditor. Appellant objected to the admission of this deed in evidence, and assigns its admission as eiiror. "We do not find it necessary, however, to pass upon this ruling. It is admitted that the plaintiffs are, and for a long time have been, the owners of the fee of the premises in controversy. It is not claimed that the public, or the county or city, for the use of the public, ever acquired the fee to the land by a dedication thereof under chapter 50 of the Revision, or otherwise, so as to vest the fee in the public. Appellant insists that the public acquired a right to the premises by the continuous use and occupation thereof as a public highway, and he insists, as the jury so found, that the court erred in rendering judgment for plaintiffs. It is unnecessary to discuss and determine the questions [97] argued by counsel arising upon, tbe deed to tbe county, for conceding that the right claimed by appellant rests upon prescription, and that the user has been such and for such a length of time, as to establish a highway by prescription upon the premises in controversy, still the rights acquired cannot be enlarged beyond what the use has been. In other words, if the use and occupancy of the premises has been for a highway for a sufficient length of time under a claim of right, it gives to the public the right to continue such use. A right of way has thus been acquired. Keyes & Crawford v. Tail, 19 Iowa, 123. The fee, therefore, being admitted to be in plaintiffs, the public has no other right than to use the premises as a highway, that is, the right of passing and repassing thereon, and the incidental right to repair the same and keep it in proper condition for that purpose. There is no evidence, nor is it claimed in argument, that the use upon which the easement is claimed ever extended beyond this. The title to the land and all the profits to be derived from it, consistently with, and subject to, the easement, remain in the owner of the soil. He owns all the trees upon it and the mines and quarries under it. He has all above and all under the ground, except the right of way in the public, which is a right of passage. See Lade v. Shepherd, 2 Strange, 1004; Perley v. chandler, 6 Mass. 453; Alden v. Murdock, 13 id. 256; Stackpole v. Healey, 16 id. 33, and other eases cited; The City of Dubuque v. Maloney, 9 Iowa, 150, and cases cited; The Same v. Benson, 23 id. 218. To this fight of passage, as before remarked, belongs the incidental right to keep the highway in proper repair, and in doing so the proper officer may use the stone within the limits of the highway in a reasonable and proper manner for that purpose. Wash, on Ease. (2d ed.) 211. Whether the use made of the stone in the case before [98] us was reasonable and proper is a mixed question of law and fact. The jury found, specially, that the stone quarried and taken by the defendant was used in the repair of the other streets in the city. The evidence shows that the stone was quarried in the bed of the river where the bridge crosses the same, and was used generally in the repair of streets in the city and for building a culvert in one of the streets. Upon this evidence and finding the court ruled that the use was not a reasonable one, and we are of opinion that the ruling was right. The statute (itev., § 901), authorizing road supervisors to take timber or other material, for the use of the road, from any uninclosed lands in the neighborhood of which the road passes, has no application to the question presented here. That section provides for taking timber or other material for the use of the road from premises outside of the highway, and which shall be paid for out of funds in the hands of the supervisor. We are of opinion, upon the principles of the cases before cited, that the right of the public, through its officers, to use stone within the limits of the highway, in a reasonable and proper manner in the repair of the highway, will not authorize it to go into a stone quarry in the bed of a river, which is no part of the highway, except that it is spanned by a bridge constituting a part thereof, and remove stone therefrom to build culverts in and repair other streets in the city. Affirmed.