Fountain v. Keen

Waterman, J. — The annexed plat will show the road m dispute, with its immediate surroundings: It fairly appears that Grain, who was the grantor of defendant Keen, and plaintiff, in the year 1889, desired to procure a road from their respective places north to the east and west highway shown on the plat. It was agreed between them that plaintiff should, secure a strip off the east side of the Kayner land, then belonging to the estate of one Loan,, deceased, who left a widow surviving him and also minor children, who were under guardianship. Plaintiff it seems [408] acted. By proper proceedings had, the guardian was authorized to sell such strip, and he made a deed to the public, but in it described the land conveyed as 18 feet wide off the north side of said tract. ■ The lG-J-íoot strip on the east side was, however, in fact set off, and fenced, at least in part. Crain procured a deed from Serber and wife to him as grantee of a strip 16-1 feet off the east side of the Serber land, which deed contained this provision “Above-named Mathews and Maryan Serber to have free and undivided right of the said herein described. Said land to.be used as a public highway.” This strip was opened and fenced, except that a gate was put in just south of the Serber house. It is true there is evidence of other gates across the way, and sornp conflict as to the amount of travel,.but for our purpose we may concede'plaintiff’s claim that it was opened and used for some two years by such of the public as had occasion , to go to the lands of Fountain or Crain. About the year 1895 another gate was put in by defendant Burge, at the northeast corner of the Serber tract, and it is this obstruction that is sought to be removed. During the trial Bayner, who bought the land of the Loan estate, appeared as a defendant, and set up that he had executed a quitclaim deed to Johnson county of the strip 16-1- feet wide off the east end of his 80 acres, to correct the guardian’s deed heretofore mentioned, and he disclaimed any interest therein. In the year 1893 Crain quitclaimed his interest in the strip bought of the Serbers to defendant Keen, and in 1899 the latter and wife quitclaimed the same to defendant Burge. I. The first question for consideration is whether there was any dedication of this strip to the public. That Fountain and Crain united in an effort to procure a way from their premises to the public road oirthe north is conceded, and taking the action of the guardian of the Loan minors, together with Bayner’s subsequent deed, we may concede, . though for the purpose of argument only, that Fountain pro [409] cured a dedication of the part of the road which he had agreed to procure. But it does not follow that the whole way was dedicated, nor, indeed, that Fountain and Crain hM anything more in mind than a private road in making their agreement. They were endeavoring to get access to a public highway. Each was to secure a part of the land necessary. So far as appears, the only manner in which Fountain could comply with his part of the agreement was by getting a dedication to the public; but not so with Crain. lie procured a deed direct to himself, and that is inconsistent with any rights in the public. So, too, it appears the Serbers, when they conveyed to Crain, did not understand they were making a dedication of a public highway, or they would not have reserved a right of use in themselves. The phrase in their deed, “said land to be used as a public highway,” in the light of these considerations, and of the further fact that a dedication to the public would be inconsistent with their grant to Crain, must be taken to mean only that it was given for purposes of travel,- and not for cultivation, — that Crain, not the public, should hold it as a way. There are some further facts tending to show that plaintiff did not at the time understand this to be a public highway. He at one time after this road was opened joined in a petition to the county authorities asking to have this strip established and opened as a public highway. This was refused, and he later applied to the school authorities to have it established as a school road, and this request was also denied. Many authorities are cited by appellant to show what use of a way is necessary in order to vest title in the public. See City of Waterloo v. Union Mill Co., 72 Iowa, 437; Taraldson v. Town of Lime Springs, 92 Iowa, 187; Devoe v. Smeltzer, 86 Iowa, 385; Baldwin v. Herbst, 54 Iowa, 168. But in all these cases, and others which might be cited, prior dedication was shown. It is that element which is lacking in the case at bar. The Serbers could not have dedicated, id est, conveyed to the public, for they con [410] veyecl to Crain, and there is no contention that the latter ever made such dedication. There is no claim here of a right, irrespective of actual dedication, obtained by adverse user. Nor is there any claim to this strip as a private road. As the latter question might depend on the matter of notice to Keen of plaintiffs rights when the former purchased of Crain, and that is not argued, we do not think it proper to decide the question, even though we might deem it included in the case presented. We might have dismissed this appeal because of a failure to comply with the rules, for the abstract is nothing but the transcript in print, but have thought better to dispose of it on its merits, as the record is not large, and no great amount of undue labor is imposed upon the court. — Affirmed.