Yost v. Leonard , 34 Iowa 9 ( 1871 )

Miller, J.

The appellants have limited their appeal to “ so much of the decision, judgment and decree of the district court, as decides that the defendant dedicated, or intended to dedicate, to' the public, use so much of Main' street as would extend to the north line of Spring street, and so much of Spring street as would extend to the west line of Main street; ” and, in decreeing the same a public highway, and enjoining the defendant from obstructing the same, “ and from such part of '"the judgment of said court as decrees that the defendant has no right to inclose that portion of Elm street that lies west of Monument square, and that portion of Walnut street that lies north of said square, and extending'to the west line of Elm street, and holding the sanie to be public highways, and holding said vacation, to that extent v&id and perpetually enjoining defendants obstructing and inclosing the same,” etc. The other portions of the decree are not appealed from, and we will consider such parts only as the appeal brings up.

1. dedication: town plat: intersection of streets. I. There is no evidence except the exhibits annexed to the'pleadings. The petition avers that Main street ex-terids to the north line of Spring street, which runs at right angles with the former. This ¿enie¿ jiQ the answer, and it is claimed that the plat, which is the only evidence on this point, does not support the averment of the petition. It is claimed by appellant that Main street does not extend north of a line corresponding to the south side of Spring street on the east, and the outside of the town plot on the west, of Main street, and that Spring street does not extend west of a line corresponding with the east side of Main street on the south, and the west boundary of the town on the north of Spring street. In other words, that Main street does not extend into Spring street, nor Spring street into Main street; they run at right angles with each other — Main street running on the west side and Spring street on the north side of the same block. There are no lines or other marks on the plot which indicate that such was the intention of the defendant when the town was platted and the plat recorded. The construction of the plat contended for by appellant cuts off all communication between these two streets. The owner of the lot on the corner of the block on the east side of Main street, and the south side of Spring street, were he to erect a building on such comer, with doors on the north and west, could not pass from one door to the other around the corner of his house, fronting on two public streets, without committing a trespass on the defendants’ land. Such a construction would be unreasonable, and not to be adopted, unless the plat showed clearly and unmistakably that such was the intention. In the absence of any thing on the plat to indicate that these streets were not intended to intersect, the presumption is that they were. If it had been the intention that they were not to intersect, it would have been easily indicated on the plat. The universal custom of laying out cities and towns, so that the streets intersect and communicate with each other, .would have, induced the defendant to indicate by unmistakable signs that these streets were not intended- thus to intersect, had such been his intention. In the absence of any thing to show such intention, the public and persons purchasing lots on either of these streets might well conclude that they were intended to communicate with each other.

2. — vacation: of portions of plat: streets. II. It is next urged by appellant that that portion of the decree which enjoins him from inclosing and obstructing that portion of Elm street that lies west of Monument square, '.and that portion of Walnut street that lies north of said square, and extending to the west line of Elm street, and holding said portions of streets public highways, is erroneous.

The appellant, as the owner of the land, laid out the town, and platted and recorded the same under chapter 50 of the Revision of 1860, which was chapter 41 of the Code of 1851, the last section'(1021) of which reads as follows: “ The acknowledgment and recording of such plat is equivalent to a deed in fee simple of such portion of the land as is therein set apart for public use or is dedicated to charitable, religious, or educational purposes.”

ITnder this section, the fee to the streets, alleys and public grounds vested in the public, or if the town was incorporated, in the corporation in trust for the public, and the lot owners acquired a right of way over the streets and alleys. Milburn et al. v. The City of Cedar Rapids et al., 12 Iowa, 246; Ransom v. Boal, 29 id. 68; City of Des Moines v. Hall, 24 id. 234.

The attempted vacation of a part of the town plat by the appellant, and the right to do so, is claimed under chapter 78 of the Laws of 1862, p. 79. That act provides :

“ Section ' 1. That in all cases wherein any person or persons, body politic or corporate, have laid out or may hereafter lay out any lands into town plats, or any addition to a town plat, or subdivision of town lots, and the maps or plats have been recorded, they, their heirs, assigns, grantees, or successors or executors, under order of the proper probate court, may, at any time before mahi/ng sale of a/n/y lot or lots therevrb, by executing a writing duly acknowledged or proved as is or may be required in respect to deeds, and causing the same to be recorded, declare such plat to be vacated; and the execution and recording of such writing shall operate to destroy the force and effect of the recording of the map or plat so vacated, and to divest all public rights in the streets, alleys, commons and public grounds laid out or described in such plat or map. And in cases wherein any single lot or lots shall have been sold, the town plat, or addition or subdivision of town lots, in which said lot or lots so sold are situated, may be vacated as herein provided, by all the owners of lots in such town plat, or addition or subdivision of town lots, joining in the execution of the writing aforesaid.” -

“ Sec. 2. Any part of a town plat, or addition, or subdivision of town lots, may be vacated under the provisions and subject to the conditions of this act, provided such vacation does not abridge or destroy any of the rights and privileges of any other proprietors in said town plat, or addition thereto, or subdivision of town lots; and, provided further, that nothing contained in this act shall authorize the closing or obstructing of any public roads laid out according to law.”

Lots having been sold in the town as originally platted and recorded, no attempt was made to vacate the whole plat under the first section of the act, but only a part thereof under the second section.

By reference to the plat, it appears that the square conveyed by appellant to the Monument association is included within the portion .of the plat vacated, and that such square is bounded on the north and west by the streets attempted to be vacated.

It is proper to remark that -appellant’s deed of vacation was presented to and confirmed by the circuit court of the proper county, but that no.notice was given to any of the appellees or to any one interested in the town, and that none of the lot owners of the town joined in the deed of vacation.

Appellant bases his right to vacate “ Monument Square,” and the street on the north and west thereof, on a request of the officers of the association, and on a proviso in his deed to them of the square, as follows: “ Provided that the streets west and north of said lots (square) are not to be opened until the. sale of the lots on the line of said streets west and north.”

This proviso does not sustain the right claimed. The vacation, if valid, would have the effect to take away and destroy the right of the association to have these streets opened at any time. This is not contemplated by the proviso in the deed. On the other hand, the plain import of these words is, that - until the lots on the line of these streets are sold, the streets named need not be opened, but that they shall be opened when such lots are sold.

Now a vacation of these lots and streets would have the effect to prevent the sale of these lots entirely, and thereby abridge the rights of the. Monument Association under this clause of the deed, which the second section of the act above set out expressly prohibits. Before the rights of the association acquired -under their deed can be destroyed by a vacation of any part of the town plat, -they must join in the execution of the deed of vacation as provided in the first section of the act.

Again, other purchasers of lots in the town acquired rights and privileges in these streets, having purchased on the faith of the plat as recorded, whose rights-or privileges, the statute provides, shall not be abridged or destroyed in this ex parte manner by the mere will of the original proprietor.

Affirmed.