Vorhes v. Incorporated Town of Ackley

Debmer, J. 1. Streets: occupancy by lot owner; estoppel. ’Plaintiff’s lots in tbe town of Ackley front on State street. To tbe rear of these lots is an alley twenty feet in width. As platted State street was ninety feet in width from curb line to curb line. Tbe abutting owners temporarily improved their properties, so that in some places, and particu [659] larly in front of plaintiff’s lots, the street was not more than seventy-six feet in width. Plaintiff purchased his property from one Jones, who had made practically all the improvements now found thereon. Jones was a witness in this case, and he testified that when he made the improvements upon the lots he knew the exact size thereof, and that he improved with reference to the true street line, knowing that his property as then inclosed was out into the street. When he sold to plaintiff he informed him (plaintiff) as to the exact size of the lots, and told him that the sidewalk in question was too far out into the street. Jones did not build with reference to the street line now claimed by plaintiff, but with reference to what he supposed was the true line, which was very near where defendant now claims it to be. Plaintiff did not buy relying upon the line which he now claims, but with full knowledge that the property was out some distance into the street. There is no doubt that the true line, as shown by the original plat, is where the defendant now claims it to be; and defendant has the undoubted right to require plaintiff to move his sidewalk and fence back to the true line, unless it be for some matters to which we shall now refer. Plaintiff insists, first, that the line as claimed by him has been recognized by the town, and acquiesced in for more than thirty years, and that it is now estopped from insisting upon another and different one, although that one may be the true one as shown by the survey. It is true that trees were planted out into the street by various owners of property abutting thereon, and that temporary sidewalks and fences were constructed outside of these walks; but it also appears that these walks were known by all parties to be in what was supposed to be a parking out into the street, and that the temporary fences were constructed to protect the trees from stock which was running at large, and not for the purposes of marking the lot lines. The sidewalks were all temporary in character, and, as we have seen, the [660] improvements on plaintiff’s lots were not made with reference to the line now claimed by bim. TheiTe was no such recognition of the line for which the plaintiff contends, and no such acquiescence by the city therein, as to estop it from claiming to the true line. 2. Dedication of Street: presumption, It is suggested' that, while the dedicator laid out the street to the width of ninety feet, the defendant did not accept it for that width, but only to the extent that it was used and occupied by the adjoining owners. x v ° The presumption is that it accepted the dedication as made, and it was not required to improve the street to its full width until it was practical to do so, or until there was some demand therefor. Practically all the owners, and more especially plaintiff’s grantors, well knew that they were encroaching upon the street, and there is nothing to negative the presumption that the town accepted the dedication as made. The trees were planted on a line about ten feet into the street, according to a general and well-understood custom of the abutting lot owners. The sidewalks were, of course, laid in the street, and presumptively with reference to the supposed lot lines; but they were temporary ones, and the parties who constructed them generally knew that they were ten feet or more away from the lot line. Practically every lot owner save the plaintiff has moved his sidewalk back to the true line; and, if plaintiff is granted the relief asked, his property will jut out into the street neaidy ten feet, making a break in the sidewalk inconvenient and unsightly, .and dangerous to pedestrians. With the sidewalk back to the true line, plaintiff will still have lots 103 feet in depth. The claim of acceptance to but a part of the street is not sustained by the evidence, and there has been no such recognition of the- line contended for by plaintiff as to estop the defendant from insisting that he place his sidewalk back to the true line. City v. Union Mills Co., 72 Iowa, 437; Shea v. Ottumwa, 67 Iowa, 39; Taraldson v. Town, 92 Iowa, 190. [661] 3. Adverse possession. [660] Plaintiff also relies upon adverse possession and title by [661] prescription. Ordinarily, tbe rule of adverse possession does not apply to a public corporation, in tbe exercise of its governmental functions. Markham v. City, 122 Iowa, 689. Even if it did, there is no-proof in tbe instant case to sustain it. Plaintiff and bis'' grantors each and all knew that tbe line now insisted upon by tbe plaintiff was not tbe true one, and none of them,, unless it be tbe plaintiff, ever contended that this was the true line. They knew that tbe property was out into the street, and did nothing to indicate that they were claiming tbe property as of right. Plaintiff acquired bis title in tbe year 1902, and was then informed by Jones that be was out into tbe street with bis sidewalk. While estoppel is relied upon, tbe facts are not sufficient to sustain tbe claim. Neither plaintiff nor bis grantors made any improvements with reference to tbe line now claimed by plaintiff. On the- contrlary, these improvements were constructed with reference to tbe true line. The case in this respect is ruled by tbe cases already cited. See also, Rae v. Miller, 99 Iowa, 653; Solberg v. City, 41 Iowa, 504; Corey v. Ft. Dodge, 118 Iowa, 742. Tbe authorities relied upon by appellant are not in point. The decree dismissing plaintiff’s petition is correct, and it is affirmed.