
    Susan Brown v. City of Cedar Rapids, Appellant.
    Boundaries: Location of Road. Plaintiff owned a lot bounded on the south by B avenue. Just west of the lot the avenue was 66 feet wide, but plaintiff claimed that her lot included the north 33 feet of the avenue. The city claimed that a public road had been opened over the same route in 1848, and that it . included the disputed strip. About 1870 a ditch was opened through what was afterwards E avenue, for drainage purposes, and in time washed out its banks, making a channel 40 feet wide, or more. In 1896 a sewer was substituted for the ditch. Witnesses for the city and for plaintiff testified that B avenue ■ was the old public road; that travel went along it to a ferry which crossed, a river at that point; that the road was of equal width, and there was no jog or offset where it passed plaintiff's land. They all agreed, however, that in bad weather travelers went where they pleased, and that after the ditch was washed out there was no travel at that point in dispute. The strip was not inclosed with the remainder of plaintiff’s lot by a fence. The field notes of 'the survey of the old road did not locate it where E aveune afterwards was, nor anywhere near it. The avenue did not extend to the river, while the old road did. When the sewer was put in on the avenue, plaintiff offered to permit the use of the necessary part of her lot, and her proposition was accepted by the city. She paid an assessment for brick and paving and stone curbing along the disputed strip on a'side street. Held, that plaintiff was entitled to an injunction restraining the opening of a road through the strip.
    
      Appeal from Linn Histriet Oourt. — Hon. Wm. G-. Thompson, Judge.
    Saturday, May 24, 1902.
    Action in equity to enjoin defendant city from opening a street through plaintiff’s land. From a decree in plaintiff’s favor, defendant appeals. —
    AMrmed.
    
      John H. Hughes for appellant.
    
      Smith (& Smith for appellees.
   Waterman, J. —

Plaintiff is the owner of lot 3, Audit- or’s plat 12, in the city of Cedar Rapids, — a tract 355 feet long north and south, and 1251 feet wide. E avenue bounds this lot on the south. Just west of the lot, E avenue is 66 feet wide, but plaintiff claims her southern boundary is the section line, which is the center of said avenue. It is this south 33 feet of plaintiff’s lot which is in dispute. We annex a plat of this and surrounding lots, to make clearer the matters which must be referred to in the course of the opinion:

The claim of the city is that by an act of the general assembly in the year 1848 commissioners were appointed to locate a road from Cedar Rapids to Marengo; that such a road was thereafter laid out, opened, and traveled; and that its bounds co-incided with those of E avenue, and included the land in dispute. About the year 1870, perhaps a little earlier, a ditch was opened through what is now E avenue, for drainage purposes; and in time the water washed out its banks, making a channel 40 feet in width, or more. In the year 1896 a sewer was substituted for this ditch, and it crosses the land in dispute. Something more will be said of the building of this sewer, hereafter. Many witnesses for defendant, and some for plaintiff, testify that E avenue was the old Marengo road; that travel went along it to a ferry which, crossed the river at this point They say the road was of equal width; that there was no jog or offset where it passed the land now owned by plaintiff. But it must be borne in mind the. witnesses are speaking of a time 35 to 50 years ago; that the land was all open then; and some of them locate the ferry, whose franchise extended one mile each way up and down the river, at the foot of Iowa avenue, which is one block south. They all agree that in bad weather travelers went where they pleased, and after the ditch was washed out there was no travel, within the limits of the street claimed, at the point in dispute! Another fact in appellant’s favor is that the strip in dispute was not,- nor is it now, inclosed with the remainder of lot 3. Plaintiff’s south fence is about 50 feet north of the section line. On the other hand, it is to be borne in mind that since the washout it could not have been inclosed until the year 1896, when the sewer was put in. Notwithstanding these criticisms of defendant’s case, we should find in its favor if the matter rested upon the facts stated, but it does not. There are certain facts of great weight yet to be mentioned. The field notes of the survey of the road do not locate it where E avenue now is, nor anywhere near that highway. The plat shows that avenue does not extend to the river, but stops at its junction with First street, which is the east boundary of plaintiff’s land. The Marengo road, wherever it was, must have been laid out to the water’s edge. Furthermore, when the matter- of putting in the sewer on E avenue was under consideration by defendant’s council, the following proposition in writing was made by plaintiff and her then -co-owner to defendant city: “Gentlemen: We, the undersigned, being the sole owners, of lot three (3) of Auditor’s plat No. 12, Linn county, Iowa, beg leave to submit to your honorable body the following proposition, and your acceptance thereof will constitute a contract between ourselves and the city: If the city will construct and maintain tain a storm-water sewer substantially as now contemplated along what is called the ‘Vinton Ditch’ we will in consideration of the benefits to our property from the construction and maintenance of said sewer, execute and deliver a deed conveying to the city the perpetual easement and right to construct and maintain such sewer over that portion of lot three (3) of Auditor’s plat No. 12 as required by the plans and specifications already adopted for the construction of said sewer, granting unto the said city the-right to enter upon the surface of said lot three (3) to such an extent and at such times, and to do such work, as may be necessary to properly construct and maintain said sewer it being understood by such deed the city shall acquire no-other right of any other nature whatsoever than those-specified as relating to the construction and maintenance of said storm-water sewer. Susan Brown, by N. E. Brown, Her Attorney in Fact. John S. Ely.” In response to this the council adopted a resolution in these words: ‘ ‘ Resolved by the city council of Oedar Rapids, Iowa, that the proposition of Susan Brown and John S. Ely relative to the easement of lot three (3) on Auditor’s plat No. 12, Linn county, Iowa, is hereby accepted, and the mayor is hereby directed to sign this resolution, and deliver a copy thereof to the-parties above named. Geo. A. Lincoln, Mayor.” In addition to this, in 1896 or 1897 First street was improved by a permanent brick pavement being laid thereon, and stone-curbing put in, in front of lot 3; and the cost thereof, in front of the disputed strip, was assessed to and paid by the owners of that lot. Some claim is made, also, that general taxes have always been paid on this strip by the owners of lot 3; but the assessment seems to have been of the lot by its number, and there is nothing in that fact alone which would indicate the south 33 feet was included. While the payment of special taxes would not of itself be sufficient evidence to show that plaintiff was the owner of tbe disputed strip, nor to estop defendant from claiming it as part of the street (Hull v. City of Cedar Rapids, 111 Iowa, 466), yet it is a strong circumstance indicative of the fact that private ownership existed, and, taken with the other facts set out, is sufficient to negative title in the city.

We do not understand that defendant seeks to rest its claim upon adverse user; but, if it did, the use here is not shown to be of such a character as that a presumption of dedication or grant can be founded upon it. To warrant such a presumption, the use must be of a kind to convey to the owner knowledge of its extent and adverse nature. State v. Railroad Co., 45 Iowa, 142; State v. Birmingham, 74 Iowa, 407; Duncombe v. Powers, 75 Iowa, 185. The evidence relating to the travel, as we have already said, does not show that any particular route was followed. Furthermore, defendant’s witnesses who testify on the point say the Marengo road was 60 feet wide, and the city is attempting to open E avenue 66 feet in width.

Altogether, we think the equities are with plaintiff, and the decree of the district court will be aeeirmed.  