Fisher v. Beard

Cole, J. I. This action, was before this court at a former term upon a demurrer to the petition. See Fisher et al. v. Beard, 32 Iowa, 346, where a full statement of the grounds of the action and 'the averments of the petition are set forth. It is not necessary to repeat them here. The evidence satisfactorily establishes the facts averred, so far as to show that, in the original or first plat of Pella, the 1. dedication-puMie square. square in controversy was marfked “Public Square” ail(j some 0f the lots owned by the plaintiffs were sold by Scholte in reliance upon that plat; that by a subsequent plat, which only was recorded, the same square was designated as “ Garden Squareand other' lots were sold by him with the representation that the square was for the public and should forever remain an open and unoccupied space — not to be laid off into lots or used for buildings; and that in each case the lots sold for double price by reason of fronting on said square. The defendant'was then the wife of said Scholte, and afterwards became his voluntary grantee. She stands in no better condition than wpuld H. P. Scholte. Upon these facts and the law applicable thereto, as settled upon the former appeal, the plaintiffs have the right, nothing further appearing, to have the square remain open and unoccupied with buildings. II. The defendant by answer sets up a. former adjudication of the matters in controversy in this action, in and by a cause' 2. former ad- . parties.1011' entitled The City of Pella v. Scholte, which was finally decided in this court and may be found reported in 24 Iowa, 283. See also the same case in 21 Iowa, 463. The matter in issue in that case was whether H. P. . Scholte, by the platting and recording of the plat of the town, had dedicated the square to the town — the public; and secondly, if it was so dedicated to the public, had the public lost its right by reason of the continued adverse possession by Scholte. Here, the matter in issue is whether Scholte, by his representations in connection with the sale of the lots fronting the square, has estopped himself from the right to lay off the square into lots and place buildings thereon — to use it for any purpose other than a garden square. The parties are different [627] and tbe issues are different. Tbe former proceeding, therefore, is no bar to this. . III. Tbe statute of limitations was .also interposed by tbe defendant. Rut, since tbe proof shows that this action was 4. statute of application, commenced directly after the effort to lay off the the square into lots and to cause buildings to be erected thereon, the statute Constitutes no 'bar, under the previous decision in Fisher et al. v. Beard, 22 Iowa, 346. IY. A preliminary inj unction was granted ex parte, upon tbe filing of tbe petition in -the case. Afterwards, upon a 5. i n j u k c - decree. motion and showing made by the defendant; that injunction was dissolved. Upon the final hearing the defendant was perpetually enjoined from laying tbe square off into lots and from placing any buildings thereon, etc., etc. Tbe appellant’s counsel now insists that since tbe plaintiffs took no appeal from the order dissolving the injunction, such order became conclusive upon them as a res adjudícala. Under our practice this is not so. The sustaining of such a motion only determines that upon the showing there made, tbe plaintiffs were not entitled to a preliminary injunction; but such order is no bar to tbe right to a perpetual injunction upon full proof at the final hearing. Russsell v. Wilson & Co., 37 Iowa, 377. AFFIRMED.