
    Bradstreet v. Dunham et al.
    1. Conveyance: description: street as boundary: variance between survey and plat. Plaintiff conveyed to defendant a tract of land, bounded on the north by “Buckeye street” in a certain town, —said street being the southern boundary of an addition which plaintiff had made to the town. The street, as actually surveyed and marked by visible monuments, was 60 feet north of the street as shown by the ■ recorded plat of the addition. Held that the conveyance entitled defendants to hold possession of the land up to the street as actually surveyed, and, as between the grantor and grantee, it was immaterial whether or not, on account of failure to comply with the law, the plat operated as á statutory dedication of the street.
    
      2. Cities and Towns: common law dedication of street: what is not. There can be no common law dedication of a street to public use without the animus dedicandi on the part of the land owner, coupled with use by the public.
    
      Appeal from Jones District Court.
    
    Saturday, December 6.
    Action in chancery to quiet the title and recover possession of land. Upon a trial on the merits, a decree was entered dismissing plaintiff’s petition, from which he appeals.
    
      Herrick & Doxsee and Sheean & McCarn, for appellant.
    
      Monroe & White and E. Keeler, for appellees.
   Beck, J.

I. The undisputed facts of the case, and the questions in controversy between the parties, may be briefly and clearly stated without reciting the pleadings. The plaintiff conveyed to the defendants a tract of land, part of the northern boundary of which is described as the center line of Buckeye street, in the town of Monticello. This street was in the addition to the town made by plaintiff, and was the southern limit thereof at that locality. When the addition was surveyed, stones were set up at some of the corners of lots abutting upon the street, and stakes were planted at other corners. The surveyor, in platting the addition, through mistake made the plat to show a tier of lots south of the real survey, so that there were five more lots shown by the plat than were really surveyed, thus causing the south boundary of the addition, and the south boundary of Buckeye street, to appear in the plat to be 60 feet further south than they were, in fact, as surveyed. The plat was duly acknowledged by plaintiff, and was approved by the proper officers, and recorded. The contentions of the parties involve the boundary of the addition and of the street; plaintiff insisting that it is controlled by the plat, while defendants maintain that it is to be determined, by tbe survey. Defendants are in possession, of tbe land, and by this action plaintiff seeks to recover possession and quiet tbe title of the realty.

III. Plaintiff insists that by reason of non-compliance with the law, which requires stakes in the corners of the lots, and for other reasons, the plat does not operate as a statutory dedication of the land. Let this position be admitted, and jet plaintiff is not aided by it. If there was no statutory dedication of the street, the law will still regard the description of the deed, and will seek to discover the boundary indicated thereby. It will seek to determine what line was meant by the grantor by the words “ Buckeye street” used in the deed. This line was plainly indicated by the survey, and the stones placed in pursuance thereof. The law will declare the line disclosed by the monuments, and lawful evidence in aid thereof, to be the line of the street, even though there be no statutory dedication thereof.

IY. But plaintiff’s counsel insist that there exists under the plat what they call “ a common law dedication,” which corresponds with the lines indicated by the plat, This position cannot be admitted. It is an undisputed fact that essential elements to constitute dedication of the street at common law, as indicated by the plat, are wanting. These are the animus dedicandi on the part of the plaintiff, and use by the public. The plaintiff never intended to dedicate the street as described in the plat, and the public have never used it as -a highway. It has all the time been inclosed, and is now in defendant’s possession. We are not required to cite authorities to show that, when there is no animus dedicandi by the land-owner, and no occupancy by the public, a highway does not exist as against the land-owner himself and those holding under him.

Y. We need-not determine whether evidence of the parties’ declarations and statements prior to or at the time of the execution of the deed is competent to show the line of the land as it was understood by them. If evidence of this character introduced in this case be competent, it surely does not show that the line as indicated by the plat was contemplated by the parties. Nor is there evidence establishing an agreement between the parties that this line should be regarded as the true line of the street. The case is simply that of a conveyance of lands, bounded by a line indicated in the deed, which may be discovered by existing monuments planted in pursuance of an actual survey. It is our opinion that the decree of the district court ought to be

Affirmed.  