104 F. 711 | 6th Cir. | 1900
after making tbe foregoing statement of tlie case, delivered the opinión of the court.
1. The deed of Leonard Case to the Cleveland Library Association
2. The deed of April 9, 1856, to the United States for the lot now owned and occupied by the United States differed from the conveyance subsequently made to the library association, in that (he easterly line of the parcel conveyed to the United States is described as running “with the westerly line” of Case street. We shall assume, for the purposes of this case, that, under the law of Ohio, a grantee holding under a conveyance which bounds his property by the west line of a street will take title only to the west line of the street, and not to the center thereof, as he would if the parcel had been simply bounded “by the street,” or “along the street,” or “upon the street.” Lough v. Machlin. 40 Ohio St. 332; Lembeck v. Nye, 47 Ohio St. 336, 351, 24 N. E. 686, 8 L. R. A. 578.
3. Bid the city of Cleveland acquire an unqualified fee in the parcel of land in controversy by virtue of the deed of Leonard Case of 'May 18, 1859? First, it is said that the city had not the capacity to take the fee. A municipal corporation, unless restrained by statute or charter, has the implied power to purchase and hold all such real estate as may be necessary to the proper exercise of powers specifically granted. 2 Dill. Mun. Corp. (2d Ed.) § 432; Ketchum v. City of Buffalo, 14 N. Y. 356; Beach v. Haynes, 12 Vt. 15; State v. Woodward, 23 Vt. 92; Reynolds’ Heirs v. Commissioners, 5 Ohio, 204; Gall v. City of Cincinnati, 18 Ohio St. 563. So it is competent for the legislature to authorize the appropriation of the title in fee to land taken for a public use, and if such a full appropriation is made, and the owner compensated, nothing remains in the owner, and he cannot claim additional compensation if the land shall he subsequently alienated or lawfully appropriated to a different public use. Cooley, Const. Lim. (5th Ed.) 692; Heard v. City of Brooklyn, 60 N. Y. 242, 247; Heyward v. Mayor, etc., 7 N. Y. 314; Com. v. Armstrong, 45 N. Y. 234; Haldeman v. Railroad, 50 Pa. St. 425, 436; Coster v. Railroad Co., 23 N. J. Law, 227; Dingley v. City of Boston, 100 Mass. 544.
The legislative power has not generally deemed it essential to require or authorize the taking of any greater interest in the land than an easement terminable by cessation of the use. Hence the well-settled rule that when the public use for which the property was taken, or to which it was dedicated, has become impossible, the freehold reverts to the grantor. But this right of reverter depends upon the question as to whether the original owner was devested of his entire interest by the proceeding, dedication, or grant under which the municipality acquired the property in question.
The charter under which the city of Cleveland was governed at the
The deed made by Leonard Case is the only source of the city’s title, and the title thereby acquired is entirely unaffected by the statute we have cited, or the Ohio cases which construe- and apply it. Neither have we to deal with a common-law dedication. That sort of dedication, as we had occasion to observe in Commissioners v. Young, 8 C. C. A. 27, 30, 59 Fed. 99, operates “only by estoppel.” “The acquiescence of the owner and use by the public estop him from asserting any right of possession hostile to such use.” It is obvious that under such a dedication the public acquire only an easement. “The owner of the fee may resume possession wherever there has been a full and lawful abandonment of the use for which the dedication was made.” This is the well-settled rule concerning public roads, streets, etc., when the fee remains in the owner of the land over which the road, street, or alley has been established. Commissioners v. Young, cited above; Village of Fulton v. Mehrenfield, 8 Ohio St. 440; Barclay v. Howell, 6 Pet. 498, 8 L. Ed. 477.
The title of the city of Cleveland depends neither upon a common-law dedication, nor upon a statutory dedication under the act of March 3, 1831, nor upon the effect of any legal proceeding appropriating land for street purposes, but solely and wholly upon the legal effect of the deed of Leonard Case to it. The city, in view of the public interests involved, has consented to a nominal assessment of damages for its interest in Case street; and if Leonard Case has, by his deed, devested himself of every interest in the property, his heirs have
The words, “as and for a public street,” do not, ex proprio vigore, import a condition. In Greene v. O’Conner, 18 R. I. 56, 25 Atl. 692, it appeared that the owner of land conveyed a strip to the city of Providence. The conveyance was in fee, but recited that “this deed is made upon the condition that the said strip of land shall be forever kept open and used as a public highway, and for no other purpose.” It was held that the clause did not create a condition subsequent. In Kilpatrick v. City of Baltimore, 81 Md. 179, 31 Atl. 805, the conveyance was of a parcel of land to the city, with an habendum clause as follows: “To have and to hold the parcel of ground above described, * * * unto the mayor and city council of Baltimore aforesaid, and its successors, forever, as and for a street to be kept as a public highway.” The land was diverted to another use, and action was brought to recover the property as for a condition broken. The court held that the words were consistent with an intent to repose a confidence in the authorities that they would carry out the purpose of the grantor so long as it was reasonable and practicable, but did not constitute a condition subsequent. In Rawson v. Inhabitants of School Dist. No. 5, cited above, the words, “for a burying ground, forever,” in a deed to the town of Uxbridge, were held not to make the estate conditional. In Raley v. Umatilla Co., 15 Or. 172, 13 Pac. 890, a warranty deed to the county, “for the special use, and none other, of educational purposes, and upon which block shall be erected a college or institution of learning,” etc., was held to convey an unqualified fee. In Beach v. Haynes, 12 Vt. 15, a conveyance of land in fee to the town of Westford, “for the use of a common,” was held to pass an alienable fee; and in State v. Woodward, 23 Vt. 92, a deed to a town, “for the use of the town as a meeting house,” was held to pass an unqualified fee. In Taylor v. Binford, 37 Ohio St. 262, it was held that the grantor could not re-enter for condition broken, where his deed was to a township board of education, “its successors and assigns, forever,” “for the use of school purposes only,” although the property has been sold at public sale to the highest bidder and conveyed by the board. In Watterson v. Ury, 5 Ohio Cir. Ct. R. 347, affirmed by the supreme court upon the opinion of the circuit court, the deed contained a clause, “as a burial ground for the Roman Catholics.” It was held that the grantee took a fee-simple estate, and not an estate upon condition. To the same purport are
If the deed" of Case devested the grantor of every interest, and conveyed an unconditional fee, the title thus vested was unaffected by the subsequent city ordinance. The words, "as and for a public street of said city,” are to be regarded as an expression of the grantor that the property shall be constituted and maintained as a public street, so long as it shall be reasonable and practical. The ordinance is the action of the city carrying out this purpose of the grantor. Such an ordinance was made necessary by the Ohio act of March 18, 1859 (56 Ohio Laws, 57), which provided that no street thereafter dedicated to public use by its owner should be deemed a public street so as to impose responsibilty upon the city for its care and maintenance, “unless the same shall be accepted and confirmed by an ordinance specially passed for such purpose.” The object of the ordinance is therefore palpable. Its effect was not to qualify the city’s title, but to make a public street over and upon property which the city owned in fee. That the title of a city to its streets is property held pnblici juris for use as streets may be conceded. But if the grantor has parted with all of his title, and the street is lawfully vacated or devoted to some other public use, no right, title, or interest of the grantor is affected, and his heirs have, as such, no interest which is taken and for which compensation may be demanded. The rights of abutters may be affected by devoting a street to other purposes, and they may have such rights as will entitle them to interfere, but the grantor has no such right if. in fact, there is no reverter upon abandonment of use asa street. We cannot hold that the language of this deed so unequivocally imports a right of re-entry upon the discontinuance of this street as to make the title subject to a condition subsequent without violating the cardinal principle of real property, “that conditions subsequent, which defeat an estate, are not to be favored or raised by inference or implication.” The judgment is accordingly affirmed.