Solberg v. City of Decorah

Day, J. — I. The petition omits to state one fact essential to the establishment of a title by prescription. It does not aver that the possession was taken, or that it has been con505 tinned, under color of title or claim of right. It simply states that sixteen years before the commencement of the suit one A. Bradish, who owned lot 5, abutting upon the street, fenced a portion of the street, and erected a house extending partly upon it. The plaintiff does not show when he derived title to the abutting lots, nor that he. ever procured a conveyance of any interest in the street in question. It does not appear that the conveyance, under which he claims, gave him color of title to the street; and if it did, the petition does not show that his possession has continued for ten years. The case falls very fully within the principle of McDunn v. The City of Des Moines, 34 Iowa, 467. See also Grube v. Wells, Ib., 148, and cases cited. 2. estoppel: sure of'street. II. The facts averred as constituting an estoppel are equally deficient and unavailing. • It does not appear that the plaintiff was .ignorant of any material fact, nor that the defendant made any representation or concealment. All that appears in the case is that those under whom plaintiff derives title to the abutting property fenced up a part of the street, and that they and plaintiff have held possession for sixteen years, without any protest or expressed dissent upon the part of the city. The city simply remained passive, nothing more. It did not induce the adjoining owners to fence the street. It did no act to lead them to believe that it would not, 'when it saw proper, insist upon the right to have the street opened. Surely it cannot-be claimed that, because it merely indulged the adjoining owners in the us.e of a portion of the street for a time, it has estopped itself to insist upon its own rights therein. It will not do to say that a party can preserve his rights only by being a churl. See Bigelow on Estoppel, page 430. The demurrer was properly sustained. Affirmed.