179 P.2d 437 | Ariz. | 1947
This action was brought by appellees (plaintiffs below) for the purpose of securing an adjudication that Block 5 of Willow Addition, Maricopa County, Arizona, is a public park, and to enforce the asserted right of plaintiffs and others similarly situated to use the block for public park purposes. Such adjudication was made by the trial court. One of the defendants, Allied American Investment Company, the admitted owner of an asserted valid tax title to said premises, has appealed.
A resume of the evidence establishes these facts:
On March 26, 1913, Phoenix Title Trust Company, Trustee, caused a plat of Willow Addition to be recorded in the office of the County Recorder of Maricopa County, on which plat Block 5 is marked "Park." The plat contains a formal dedication of the streets and alleys shown thereon, but makes no reference in specific words to any attempted dedication of Block 5 as a park. The property is not within any city or town. The entire addition was used for farming purposes as late as 1924 or 1925. Thereafter lots in the addition were sold and reference was made to the recorded plat in effecting such sales. For many years nothing was built on Block 5, though children played on it from time to time.
Several purchasers of lots testified that they were induced to buy lots by virtue of the fact that Block 5 (an area 275 ft. x 350 ft.) was designated as a "Park," on a plat exhibited at the time of their purchases. At a time when there were approximately thirty resident householders in the subdivision, a voluntary and informal community water association was organized and this association located a well on the block and for a number of years developed domestic water for the residents of the subdivision.
No affirmative steps were taken by the county to accept the dedication of such block as a park. It was assessed for the purposes of taxation each year and taxes were levied against it. Taxes were paid on it for some years and then the owner ceased paying taxes. Finally, it was sold to the state for taxes. Appellant paid for and secured a certificate of purchase, and on May 3, 1943, a treasurer's deed issued to it.
On September 7, 1944, appellant entered into an agreement for the sale of this property to Howard P. Walker. Walker sold certain portions of the property to persons not parties to this action, and two dwelling houses were in the course of construction when this suit was commenced.
The trial court found that the assessment and levy of taxes and the sale for unpaid *286 taxes were valid, but concluded "* * * that the purchasers of Block 5, the Allied American Investment Company, took title to Block 5, Willow Addition, subject to its free use and enjoyment by plaintiffs and other purchasers of lots in Willow Addition as a public park." In other words the trial judge concluded, as a matter of law, that the purchaser at the tax sale acquired the fee, subject to a perpetual easement in favor of the public to use and enjoy the property for park purposes.
Appellant's assignments of error may be summarized as follows:
There is no evidence to support the court's findings or conclusion as to a common-law dedication of the property as a public park; and
All easements are extinguished by a valid sale for taxes.
In support of this last assignment, appellant submitted the following propositions of law:
I. A valid sale for taxes clothes the grantee with a new and complete title under an independent grant from the sovereign.
II. The Arizona statutory procedure to foreclose a tax lien is in rem against the property, and not in personam against the individual taxpayer.
III. Where, as in Arizona, the procedure to foreclose a tax lien is in rem, a sale of real property for taxes extinguishes all liens and easements.
IV. The formal dedication of the streets and alleys upon the plat negatives any intention to dedicate Block 5 as a public park.
In support of the first proposition of law appellant calls our attention to section 73-837, A.C.A. 1939, and the holding of this court in Santos v. Simon,
We are in accord with plaintiff's second proposition of law that the Arizona statutory procedure to foreclose a tax lien is in rem against the property and not in personam against the individual taxpayer. Its proposition is substantiated by our holding in Santos v. Simon, supra; Home Owners' Loan Corp. v. City of Phoenix,
For the moment we will pass appellant's third proposition of law. His fourth proposition is that the formal dedication of the streets and alleys upon the plat filed in the office of the county recorder negatived any intention to dedicate Block 5 as a public park. The material parts of the formal dedication are as follows:
"Willow Addition Dedication
"Know all Men by these Presents:
"That the Phoenix Title and Trust Company, Trustee, this 25th day of March, 1913, has subdivided into an addition to the City of Phoenix, Maricopa County, Arizona, under the name of Willow Addition, all of the Southeast quarter * * * and hereby publishes the accompanying plat as and for the plat of said Willow Addition, and hereby declares that said plat sets forth all lots, blocks, streets and alleys constituting said Willow Addition and gives the measurements and dimensions of each lot and block, street and alley therein; and that each lot and each block in said Willow Addition shall be designated by the number and each street therein shall be designated by the name that is given to each respectively in said plat; and the Phoenix Title and Trust Company, Trustee, hereby dedicates to the public for the use andbenefit of the public all streets and alleys in said WillowAddition." (Emphasis supplied.)
This instrument was duly acknowledged before an officer authorized to take acknowledgments of deeds.
Dedication is the intentional appropriation of land by the owner to some proper public use. Bessemer Land Imp. Co. v. Jenkins,
The doctrine of dedication by plat is summarized in 16 Am.Jur., Dedication, § 23, as follows: "The doctrine of dedication by plat is frequently connected with the sale of lots shown on the plat. The owner of a tract of land is held to dedicate such portions thereof as are designated for public use on the plat with reference to which he sells lots out of the tract. * * *" (Citing countless cases.)
Fifty-two years have elapsed since this doctrine was given recognition in Arizona. In the early case of Evans v. Blankenship,
We shall quote extensively from the case of City of Los Angeles v. McCollum,
Under the statutes in effect at the time this dedication was made, the owner of any tract of land situated in any county of the state was authorized to plat and subdivide the same into tracts for the purpose of townsites, additions, or subdivisions. Par. 5313, C.C. 1913. See also par. 1891 et seq., C.C. 1913. This first paragraph reads as follows: "5313. Each owner of any tract of land situated in any county of the State of Arizona, being desirous of platting or subdividing the same into tracts of twenty acres or less for the purpose of townsites, additions or subdivisions, shall first have the same surveyed and platted, showing lots, blocks, or subdivisions; giving size of each lot or subdivision, name and width of avenues and streets, also width of alleys. And the said owner shall by proper dedication, dedicate the avenues, streets, parks, plazas, public grounds and alleys to the public for their general use, and shall sign said dedication and acknowledge the same as conveyances of real property."
These statutes provided for the filing of plats or maps; that there should be set forth thereon streets, alleys, lots and blocks, parks and squares, together with their dimensions, boundaries, etc. Par. 1895, C.C. 1913, provided that: "Upon the filing of any such map or plat, the fee of all streets, alleys, avenues, highways, parks and other parcels of ground reserved therein to the use of the public, shall vest in such town, if incorporated, in trust, for the uses therein named and expressed; or if such town be not incorporated, then in the county until such town shall become incorporated, for the like uses."
It is thus seen that the statutes specifically provided that upon the filing of any map or plat the fee of all streets, alleys, parks, and other parcels of ground reserved for public use vested in the town if incorporated, and if not incorporated, then in the county until the town should become incorporated.
Appellant has recourse to the rule "expressio unis est exclusio alterius." In other words, its contention is that the Phoenix Title and Trust Company, as trustee, having specifically dedicated to the use *290 of the public the streets and alleys indicated on the plat no other dedication was included or could be included, and this regardless of the fact that the recorded plat had printed on Block 5 the word "Park." It has been decided that land may be dedicated for use by the public as a park or public square, in the absence of statutory authorization. See Vol. 2, Tiffany, Real Property (2nd Ed.), § 479, and cases cited; and 16 Am.Jur., Dedication, § 8. In this behalf we do not have to rely upon the general law for the reason that par. 5313, C.C. 1913, in effect at the time the dedication was made, specifically provided that parks might be dedicated and reserved for the use of the public. In view of the last sentence in par. 5313, C.C. 1913, reading as follows: "* * * And the said owner shall by proper dedication, dedicate the avenues, streets, parks, plazas, public grounds and alleys to the public for their general use, and shall sign said dedication and acknowledge the same as conveyances of real property." the question here presented is: Did the dedicator in the instant case by inscribing the word "Park" on Block 5 comply with this paragraph wherein it says that the "owner shall by proper dedication, dedicate the avenues, streets, parks" etc.
We are of the opinion that the entire plat as filed, showing some 17 blocks, 11 streets, numerous alleys, and hundreds of lots, with their specific locations, dimensions, and boundaries, together with the block labeled "Park," constitutes the entire dedication. The rule "expressio unis est exclusio alterius" has no application. The entire plat expressed everything; nothing was left unexpressed. The making and recordation of the plat coupled with sales of lots therein constituted the dedication. Evans v. Blankenship, supra. The use by the purchasers of lots and the general public constituted a sufficient acceptance. Collins v. City of Phoenix, 9 Cir.,
The dedicator in this instance in subdividing Willow Addition dedicated the streets, alleys, and park to a public use, and the title therein vested in the county. Collins v. Wayland, supra. If the fee to Block 5 was in the county, then it was by the provisions of article
Having reached this conclusion, we see no occasion to consider appellant's third proposition of law to the effect that the foreclosure of a tax lien is an action in rem, and that a sale thereunder extinguishes all liens and easements. In passing we want to say that we have examined the case of Alamogordo Improvement Co. v. Prendergast,
For the foregoing reasons we conclude that the dedication herein made was a studied and successful attempt to comply with the statutes relating to statutory dedications; that the statutes then existing were ample and warranted the attempt; that the dedication of the park was effectual, and vested the fee in the park in the county of Maricopa in trust for the uses named and expressed in the instrument of dedication; and as a consequence thereof the park was not subject to assessment and sale for delinquent taxes.
Accordingly the judgment is affirmed.
STANFORD, C.J., and UDALL, J., concur.