Opinion
No. 1-623 / 00-1258.
Filed July 31, 2002.
Appeal from the Iowa District Court for Dickinson County, DAVID A. LESTER, Judge.
The plaintiffs appeal from a district court ruling in their action for declaratory judgment and injunctive relief. They allege the district court erred in ruling that they failed to prove the Dickinson Board of Supervisors lacked authority to grant a sanitary sewer construction permit because the streets were never dedicated to the public. AFFIRMED.
Donald J. Hemphill of Hemphill Law Office, Spencer, for appellants.
Michael G. Byrne of Winston Byrne, P.C., Mason City, for appellees Hedrick.
James A. Clarity, III, of Clarity Law Office, Spirit Lake, for appellee Dickinson County.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
Arlo Dale Lenz and Arlo John Lenz appeal from a district court ruling in their action for declaratory judgment and injunctive relief. They contend the district court erred in ruling that they failed to prove the Dickinson County Board of Supervisors lacked authority to grant a sanitary sewer construction permit because the platted streets in which the sewer would be placed were never dedicated to the public. They argue the court erred in (1) requiring them to prove a dedication and acceptance of the streets did not occur, (2) ruling there had been a dedication of the streets to the public, and (3) ruling the County had accepted the dedication. We affirm.
I. BACKGROUND FACTS.
The plaintiffs, Arlo Dale Lenz and Arlo John Lenz, own several lots in the Revised Plat of Maywood south of West Lake Okoboji in Dickinson County, Iowa. Defendant A B Enterprises owns property adjacent to the southern and eastern borders of the revised plat.
The original plat of the Maywood Subdivision was recorded on July 31, 1922, and stated that "[a]ll streets, avenues and alleys shown on said plat are reserved to private use." The revised plat was recorded on September 6, 1923. It added several blocks, extended rights-of-way, and added the street named Maywood Avenue. Unlike the original plat, the revised plat was silent on whether the streets and rights-of-way shown on the plat were reserved for private use or dedicated to the public. It did, however, vacate and annul the earlier plat. Dickinson County has never used, improved, or maintained the roadways located in the revised plat. The City of West Okoboji annexed some of the land, including some parcels next to the Lenzes' lots. The Lenzes have also sought voluntary annexation of their lots by the City of West Okoboji. Under the voluntary annexation, the roadways would be private.
A B's land is traversed by "new" highway 71. A B determined they wanted to sell commercial lots on highway 71, but needed sanitary sewer service to do so. They concluded the least expensive way to do this would be to run sewer mains along Haw Street and Maywood Avenue in the revised plat. A B therefore applied for a permit to construct a sewer line along those streets to A B's property.
In a written opinion dated March 31, 1999, the Dickinson County Attorney advised the Board of Supervisors that they had the authority to consider the application for the construction of a sanitary sewer line. His opinion noted that this was "a roadway that has had a long and uninterrupted use by the general public." At a public hearing held May 25, 1999, the Board voted two-to-one to allow A B to construct the sewer line. The Lenzes did not appeal from that determination. The Lenzes did file this action seeking to enjoin A B from entering upon or attempting construction in the streets or rights-of-way, and declaratory rulings that the streets or rights-of-way were private, they had not been dedicated to or accepted by the County or public, the County had no jurisdiction over the streets or rights-of-way, and the County had no authority or jurisdiction to grant the construction permit and the defendants had no right to construct it. The court denied the application for temporary injunction and the matter proceeded to trial. The record from the temporary injunction hearing was made part of the record at trial.
The court found the case was a mixture of law and equity due to the requested injunctive relief. The court found the Lenzes bore the burden of proving all allegations of their petition, including the negative proposition that the streets were never dedicated to the public or accepted by Dickinson County. The court noted the revised plat did not contain the language preserving the streets for private use. The court also found the Lenzes' deeds did not include the roadways in their legal descriptions. The court found that the original proprietors only accomplished a common law dedication with the revised plat. The court rejected the Lenzes' claim that the proprietors only wanted to reserve an easement of access for the property owners as opposed to the general public. The court found that, by selling all the lots and filing the revised plat, the original proprietors intended to part with the use of the roadways to the public. The court also concluded that because the proprietors parted with the parts of the roadways annexed by the City of Okoboji, it would be unreasonable to conclude the remaining portions remained private.
The court then concluded the County had accepted the dedication. The court first rejected any claim of an express act of acceptance or an acceptance by implication through use by the public. The court also rejected A B's claim that nontaxation of the roadways would show an acceptance of dedication, but found that nontaxation did constitute a "holding open" of the County's ability to accept the dedication. The court then held that the Board's action in issuing the permit was either an affirmation of a prior acceptance or an acceptance. The court therefore dismissed the Lenzes' petition, and the Lenzes appeal.
II. SCOPE OF REVIEW.
Iowa Rules of Appellate Procedure 6.14(1)(f) and 6.14(2) require each party to state the scope and standard of review. The Lenzes argue the appropriate standard of review is de novo. They note the case is one of mixed law and equity. The County does not state a scope of review, but notes there are mixed questions of law and equity. A B argues that because issues of dedication involve factual questions they are not reviewable de novo, but rather the trial court's findings of fact are entitled to the same deference as a jury's findings of fact. A B does not otherwise state what it believes our scope or standard of review to be.
We conclude the Lenzes' main objective was to obtain an injunction, with the declaratory rulings they sought being the means to secure the injunction. We therefore conclude our scope of review is de novo. See Marksbury v. State, 332 N.W.2d 281, 284 (Iowa 1982) (holding review was de novo where case was one of mixed law and equity and its main objective was to obtain an injunction). We give weight to the trial court's factual findings, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6)(g).
III. MERITS. A. BURDEN OF PROOF.
The trial court concluded the Lenzes had the burden to prove their claim that a completed dedication had not occurred. The Lenzes assert the trial court erred in so concluding and placing that burden on them.
Despite the trial court's conclusion, a close reading of the remainder of its ruling strongly suggests it in fact treated the case as if the burden was on the defendants to prove a completed dedication and found they had done so.
The trial court's conclusion is consistent with the general rule in a case cited by the trial court. See N. Liberty Land Co. v. Inc. City of N. Liberty, 311 N.W.2d 101, 103 (Iowa 1981) (holding the burden of proof in a declaratory judgment action is the same as in ordinary actions at law or suits in equity, upon the plaintiff, and that the burden is not affected by the fact a negative declaration is sought). However, dedication is a question of fact and must be proven by the party relying on it. Marksbury, 322 N.W.2d at 284. We conclude the burden was on defendants A B and Dickinson County, the parties claiming dedication, to prove all elements of a completed dedication. For the reasons discussed below we find, upon our de novo review, that they met that burden.
B. DEDICATION OF STREETS.
The Lenzes contend that there was no dedication of the streets to the County or the public, and that there was no acceptance of a dedication by the County. To show a completed dedication to a municipality, the party claiming dedication must generally prove (1) an appropriation of the land by the owner for a public use, evidenced by a positive act or declaration manifesting an intent to surrender the land to the public, (2) an actual parting with the use of the property to the public, and (3) an actual acceptance of the property by the public. Id.
1. Appropriation of land for public use. The extent of the offer of dedication, its scope and character, turns on the intent of the offeror or dedicator. Id. The original plat of Maywood, recorded in 1922, specifically stated that "[a]ll streets, avenues and alleys shown on said plat are reserved to private use." In the revised plat recorded in 1923, however, this reservation of rights-of-way to private use is absent, and the proprietor's certificate states that, with the exception of certain lots listed in the certificate, the original plat of Maywood is "vacated and annulled." The fact that the revised plat does not specifically reserve the streets and avenues to private use is one factor showing the intent of the proprietor to dedicate the rights-of-way in the revised plat to public use.
Another factor is that the deeds by which the Lenzes, and presumably their predecessors in interest, received title to their property describe and include only specific lots and do not include any portions of the roadways. See Iowa Loan Trust Co. v. Bd. of Supervisors, 187 Iowa 160, 163, 174 N.W. 97, 98 (1919); (noting dedication is complete and irrevocable when plat is properly filed and lots sold with reference to it); see also Shea v. City of Ottumwa, 67 Iowa 39, 40-41, 24 N.W. 582, 582 (1885) (holding the existence of a filed plat which includes a street and the sale of lots according to the plat description by person doing platting establishes an intent to dedicate, which is sufficient to establish the street). Additionally, the developers prepared and filed the revised plat in such a way as to conform to Iowa Code section 4073 (1919) (providing that compliance with procedure under statute shall be equivalent to a deed in fee simple of such portion of the premises platted as is set apart for streets or other public use). While section 4073, previously section 917 (1897), relates to streets in towns and cities, and the filing of a plat and sale of lots in an unincorporated area does not convey fee title pursuant to that section, the filing of a plat and sale of lots pursuant to the plat in an unincorporated area works a common law dedication of the portion of the premises set apart for streets. Iowa Loan Trust Co., 187 Iowa at 165, 174 N.W. at 98; Town of Kenwood Park v. Leonard, 177 Iowa 337, 341, 158 N.W. 655, 658 (1916).
We find, as the trial court did, that the evidence shows the proprietor intended to appropriate the streets for public use in 1923. We further find that the proprietor took steps to carry out that intent by platting the property in question, filing the plat, and selling and conveying lots pursuant to the plat. We find no substantial evidence that in the 1923 replatting the proprietor intended to reserve designated streets to private use of persons purchasing lots in the platted area.
2. Actual parting with the use of the property to the public. The original proprietor sold all the lots and filed the revised plat with the Recorder, evincing an intent to part with the use of all the platted property. The streets in the revised plat connect to what was then a major thoroughfare, old highway 71, strongly suggesting a belief and intent the streets would be used by the public. The streets have not been subject to taxation since at least 1981, which is as far back as records are available, and no evidence shows they were previously taxed. The Lenzes have owned their property for fifty years, and have never paid taxes on the streets or any portion of the streets. There is no evidence anybody else has paid taxes on any portion of the streets since the revised plat was filed. A dedication to the public need not be in writing, but may be made by an act of the owner manifesting an intent to devote the property to public use. See Iowa Loan Trust Co., 187 Iowa at 162, 174 N.W. at 97.
We find the evidence establishes that the original proprietor actually parted with the use of the property to the public. Any evidence to the contrary is weak and unconvincing.
3. Acceptance. Acceptance upon the part of the public is essential to complete the dedication. Christopherson v. Inc. Town of Forest City, 178 Iowa 893, 899, 160 N.W. 691, 693 (1916). Acceptance may be by ordinance or by acts and conduct indicating an implied acceptance, but something must be done indicating an intent on the part of the public to treat the dedication as acceptable to it. Id. Acceptance of dedicated land is not open-ended; however, the tender continues until it has been withdrawn. Marksbury, 322 N.W.2d at 286. It is presumed that, once a plat is filed, the tender of right in the property,
continues until something has been done to indicate to the public that the tender has been definitely and permanently withdrawn. The time intervening between the filing of the plat and acceptance is not always controlling. The city or town has a reasonable time in which to make its election, and what is a reasonable time in any particular case depends upon the facts and circumstances.Id. (quoting Town of Kenwook Park, 177 Iowa at 343, 158 N.W. at 659).
The district court concluded that the Board's action in issuing the permit constituted either an affirmation of what they believed amounted to a prior acceptance of the dedication through the public's use of these rights-of-way, or in the alternative, constituted an acceptance by demonstrating a clear intention by the Board to accept the platted rights-of-way as streets and alleys within the County. The court inferred this acceptance from the fact that the Board would not have authorized A B to install the sewer line in an area where the Board believed the installation would constitute a trespass upon private property.
We find that the evidence shows the public had accepted the property at some point prior to the issuance of the permit in 1999. Taxes had not been assessed on the property for at least twenty years. The fact the Lenzes had not paid taxes on any portion of the rights-of-way for fifty years strongly suggests no taxes had been assessed or paid on the rights-of-way since the 1923 revised plat. The issuance of the permit in 1999 indicates that the County believed the rights-of-way had been accepted previously. Furthermore, the part of Haw Street on the lake side of old highway 71 is open to the public, and is currently part of and maintained by the City of West Okoboji. See Christopherson, 178 Iowa at 900, 160 N.W. at 694 (stating that acceptance is presumed to be and was in fact as broad as the grant); see also Gable v. City of Cedar Rapids, 150 Iowa 108, 111, 129 N.W. 737, 739 (1911) (stating that the fact part of a street has not been improved or used is of no consequence if it appears the part had not been previously needed, and where a city has used or improved a part of a street it will be presumed that it has accepted the entire street). We do not find it material that a public entity other than the County has used or improved the part of Haw Street on the lake side of old highway 71. See Dugan v. Zurmuehlen, 203 Iowa 1114, 1118, 211 N.W. 986, 989 (1927) (stating that "[a]n offer of dedication, to bind the dedicator, need not be accepted by the city, but may be accepted by the general public"). Other streets on the lake side of old highway 71 are open as well. Furthermore, the record shows that the full length of Haw Street was at one time prepared for use as a road by grading with a typical roadbed and ditches along each side. The evidence that the public has accepted Haw Street establishes that the public has accepted the streets and rights-of-way in the revised plat of Maywood.
The evidence in the record indicates that the public did accept the streets and rights-of-way at some point in time. We need not decide whether the trial court's alternative holding, that the Board of Supervisors accepted the streets and rights-of-way by issuing the construction permit, was also correct.
IV. CONCLUSION.
We conclude that the defendants have proved a completed dedication of the streets and rights-of-way. Accordingly, we affirm the district court.
AFFIRMED.