Jordan v. Beeson

I find myself unable to agree with the majority and therefore respectfully dissent.

This record shows without dispute that although there was a street between Blocks 2 and 4, all of the real estate in question, including the street, was and had been for more than thirty-seven years enclosed in one fence and used as one tract of land.

In Weaver v. Grant, 39 Iowa 294, the syllabus reads as follows:

"The use and nature of the property must determine whether or not several lots, assessed to one owner and sold en masse, should be regarded as one lot. Where two lots were occupied and used for one purpose, the buildings being partly on each, it was held that they might be sold for taxes together."

At pages 296, 297 the court said:

"So in the case of the union for use of several lots into one tract, they would become one lot, although the natural and necessary description would be by that of its component parts. * * *

"We conclude that when the use and nature of the lots require them to be regarded as one parcel, the law will so treat them. A sale of such property as one lot will be held valid."

In the case of Greer v. Wheeler, 41 Iowa 85, at page 87 we read:

"We have repeatedly held that a sale en masse of two separate tracts of land is void, and that the deed made thereon showing such fact is void and will defeat the title claimed under the sale. All these decisions, however, were in cases where no attempt was made to support the deed by evidence showing that the two tracts were occupied and used as one parcel and for one purpose. Where so used we have held that they may be sold and deeded together. Weaver v. Grant, supra."

At page 88 we find the following:

"``The deed was not void upon its face so that it could not besupported by evidence, nor, indeed, does it show conclusively an unlawful sale, for two tracts or lots of land may be sold for taxes together where they are used and occupied as one parcel.'"

In the case at bar there is no question that these two lots were used and occupied as one parcel.

However, it is the contention of the majority that, because the map of the original town of De Soto shows Chestnut Street lies between Blocks 2 and 4 and there is no evidence in the record showing that this street had ever been vacated, on that account they were two separate parcels of land. I am not able to find in this record any showing whether this street was ever vacated. The only evidence produced was the map of the original town of De Soto. In fact, there is no evidence that Chestnut Street had ever been accepted by the town of De Soto and whether or not it had ever been opened. The undisputed record shows that the street had been closed for at least thirty-seven years. To me it seems more reasonable to deduce from this testimony that the street had never been accepted by the town of De Soto and had never been opened or used by the people.

In Burroughs v. Cherokee, 134 Iowa 429, at page 435,109 N.W. 876, at page 878, this court said (quoting from the case of Weber v. Iowa City, 119 Iowa 633, 638, 639, 93 N.W. 637):

"It is therefore well settled in this and most other states that, while mere nonuser for 10 years or more will not of itself operate to defeat the public title to a street, yet where there has been such nonuser for a long time — not less than the statutory period in ordinary cases — and this is accompanied by the actual and notorious possession of the land by an individual as private property under a claim of right, an abandonment will be presumed, and the public right in the street will be held to have been extinguished."

And continues:

"Practically speaking, the land has never been opened or subjected to public use as a street since its platting 56 years ago. This is concededly true for a period of 20 years immediately before the commencement of suit, during all of which time the defendant has been in actual, exclusive possession under claim of right, without protest or interference from the city, its officers, or the general public."

At page 436 of 134 Iowa, 109 N.W., at page 879, we read:

"The loss of this right or privilege can be established only by proof of circumstances indicating a determination on its part not to avail itself thereof, and therefore in effect a refusal to accept, or which estop it from asserting the right; and this happens whenever there has been occupancy of portions of the plat set apart for public purposes by the proprietor or his grantees in a manner inconsistent with future use for such purpose and for such length of time as shall show acquiescence by the officers of the city or town in the permanent appropriation of the ground for other purposes."

In view of the facts shown in this record, that for thirty-seven years the property had been used as one tract and had been so assessed; that there is no showing that Chestnut Street was ever accepted by the town of De Soto or ever used by the people; and that, during all of this time, to-wit, thirty-seven years, it had been enclosed by a fence, the real estate in question constituted one parcel or tract of land, and therefore the inclusion of it in one deed or certificate of purchase was legal.

I would affirm the lower court.