Lorenzen v. Preston

Adams, Oil J. 1 towntoat: vacation ot Section 56é of the Code provides that any part of a plat may bo vacated by an agreement of the propria etors thereof, “provided such vacating does not abridge or destroy any of the rights and privileges of other proprietors in said plat.” The plaintiff contends that the vacating of the part of the plat in question will, if allowed, have the effect to abridge his right by shutting up certain streets which he needs for travel. The facts are, that the plaintiff resides in North Newton, upon lots separated only by a street from the part of the plat which the defendant and others have agreed to vacate. This street is called Plum street. If the vacation is allowed, two streets, called Eourth and Fifth streets, running at right angles with Plum street and intersecting it near the plaintiff’s residence, will be closed, so that the plaintiff’s means of egress and ingress will be through Plum street and Third street, the latter intersecting Plum street at right angles two blocks distant from the plaintiff’s residence. In Plum street, between the plaintiff’s residence and Third street, a clay pit. has been excavated extending across it, fifty feet wide and eighteen inches deep. In wet weather this pit is impassable. The plaintiff testifies that to make a good road across this pit would cost $200. The defendant testifies that he has been a civil engineer, and that a good roád-bed can be made across the pit, twenty feet wide, for-$12. It seems to us reasonable to conclude that Plum street should and will be made passable in all conditions of the weather, whether the vacation of Fourth and Fifth streets is allowed or not, and if so, that the plaintiff has such reasonable means of egress and ingress that his fight cannot properly be said to be abridged by the closing of Fourth and Fifth streets. His ways of getting out and in will of course be diminished in number. But it is impossible to vacate a part of a plat without abridging in that respect the rights of .those residing upon the other part of the plat. If one or more ways are left which are reasonably convenient, so that no substantial 582 right is abridged, it appears to us that the agreement for vacation must be held to be valid. As to how the plaintiff’s convenience is affected there is considerable conflict of evidence, and our minds are not left entirely free from doubt, but a careful perusal of the evidence has led us to the conclusion that the judgment must be Affirmed.