
    McDaniel et al. v. Mace et al.
    1. Homestead: extent of: town plat. The extent of a homestead situated within a town will not he limited to half an acre unless the territory embracing it has been platted.
    
      Appeal from, Dubuque District Court.
    
    Saturday, December 15.
    Action for an injunction to restrain an execution sale. The plaintiffs claim that the property is exempt as a homestead. The property occupied consists of about three acres, and is within the city of Dubuque. The sheriff marked off as a homestead one-half acre, upon which the dwelling house stands, and levied upon the remainder. The land in question is lot No. 2 of subdivision of Mineral lots 186 and 187, in Julien township. The subdivision was made by the county surveyor, under an act of the Legislature, passed in 1872. The land is outside of the original plat of the city of Dubuque, as made by the commissioner of the United States, but is within the limits of the city as extended by an act of the Legislature, passed in 1853. The land has always been used for agricultural purposes, and has never been platted by any proprietor into town or city lots. The defendant. contends that the exemption is limited to half an acre, and the District Court so held. The plaintiffs appeal.
    
      S. P. Adams, for appellant.
    
      W. J. Cantillon, for appellee.
   Adams, J.

Whether the exemption is limited to half an acre must depend upon the construction which should be given to section 1996 of the Code. That section provides ^ that the homestead, if within a town plat, must not exceed one-half acre in extent. The plaintiffs contend that the property in question is not within a town plat. It certainly is within a town; but the land has never been platted.

The defendants’ theory is that a town plat means simply the territory of a town, and that the design of the statute is to limit the exemption to half an acre where the land is within such territory. This construction, however, it will be seen, gives no force to the word plat. If the exemption is to be limited to half an acre whenever the homestead is within a town, the idea. would have been better expressed without the use of the word plat. Land is, we think, hot within a town plat unless it is not only within a town but has been platted. A plat is a subdivision of land into lots, streets and alleys, marked upon the earth and represented upon paper. To constitute it such within the meaning of the statute, it must conform to the statute; yet a plat is not made by the legislature, nor by a geographer from an.act of the legislature; it is made by the proprietor, except in a few instances where it has been made by United States commissioners. The legislature, it is true, fixes the limits of municipal corporations within the State, both quasi and chartered, but the territory of the corporations is not thereby platted. Finley v. Dietrick, 12 Iowa, 516.

The larger exemption of forty acres was provided, doubtless, with reference to the needs of those who may be presumed, ordinarily, to rely upon the products of the land for support; but the actual use to which land is put, or the vocation of the owner, cannot determine the question of its exemption; they may vary from year to year. When, however, the proprietor plats tlie land under the statute he indicates thereby that he holds it thenceforth for the purposes for which land in a town, is ordinarily used. He divests it of its character as agricultural land, and impresses it with the character of town land. He may, to be sure, continue .to cultivate it as farm land, as before; yet that use is to be regarded as temporary. By platting the land the proprietor has signified that the destiny of , the land is changed; and, if it is within a town as well as plat,, but half an acre is exempt.

We are of the opinion that the land in question is not within the town plat within the meaning of the statute, and is, therefore, exempt.

Reversed-  