Zollinger v. Clark

Evans, J. Courts : rule decision*??'*: same court. The alleys in controversy lie between the respective real properties of plaintiff and defendant. Each party claims title by adverse possession. The alleys were laid out and dedicated in the original platting, ° r kut have been included for many years, in whole' or in part, within the inclosures of the parties to the suit. The parties to the suit live upon the same block. The block contains four lots, Numbers 1, 2, 3, and 4. [749] In the original platting, these lots were all separated by alleys. The following is a reproduction of the original platting of the block: The title to all the alleys was involved in the recent case of Gulielma Zollinger v. City of Newton, 172 Iowa 352. In that action, the plaintiff asserted her right to said alleys as against the city. Her claim was sustained as to the alleys between Lots 1 and 2 and between Lots 2 and 3. As to the other two alleys, oúr holding was adverse to her. These are the alleys which are involved in the present suit. Our holding in the cited case was that the evidence of acceptance' of these alleys by the city was sufficient and that the plea of adverse possession was not available to the plain [750] tiff. The claim of the defendant Clark to such alleys as against the city has no better support than that of the plaintiff, and our holding in the cited case must be deemed determinative of this case. Indeed, the defendant concedes that, if the city is entitled to them as against the plaintiff, it is also entitled to them as against himself. This will necessitate the dismissal of plaintiff’s petition and of defendant’s cross-petition. The decree entered below will be modified accordingly. The costs in both courts will be taxed one-half to each party.— Modified and Affirmed. Deemer, C. J., Weaver and Preston, JJ., concur.