21 Mich. 319 | Mich. | 1870
The action below ivas an .action of trespass for breaking the close of Baker, and defendant justified on the ground that he was acting' on behalf of the village authorities of Lawrence, Van Burén County, in entering upon the premises as a public square lawfully dedicated by Baker, and accepted on behalf of the public so as to preclude him from withdrawing the dedication. Most of the questions presented by the assignment of errors relate to the acceptance and sufficiency of the dedication.
In September, 1846, Baker made and caused to be recorded a plat of certain lands, including the village of Lawrence as then projected by him. On this plat, which
It is claimed, however, that, as this square, although marked “ Public Square,” is also marked as “ Bloch No. 6,” the latter designation is inconsistent with any public destination, becaiise the statute requires the person making the plat to describe “all the lots intended for sale by progressive numbers.” We do not think that this provision would invalidate the designation of a block by its number for any lawful public purpose. It was merely, designed to produce some degree of harmony -in the numbering, and to facilitate the location and description of lots. And in case a block offered to the public should be refused, it is evident that its being numbered with the rest in regular course would then tend to prevent any break in the continuity of the numbering, and lead to harmony instead of confusion. We think there is no. force- in this objection. It might also be suggested that as .the plat was not completed so as to make it a statutory dedication. when executed, it might not be proper to test it by the statute.
The plat was made and deposited for registry by the owner of the land, and he Subsequently sold lots which were described by ■ reference to it. A ■ question now arises
The statute of 1850 consists of two sections, both of which profess to be retrospective. The first section in terms provides that where proprietors have platted lands and caused the plat to be recorded, without the proper acknowledgment, and have sold and conveyed lands by reference to the recorded plat, it shall have the same effect as if legally acknowledged and recorded. The second section provides that where a plat has been duly acknowledged, the record theretofore made shall be evidence as against the makers of the sufficient dedication, gift, and grant to the public of any portion thereof represented in such plat as a public square. Both sections save rights in present litigation.
• If the first section is broad enough to cover public squares, then .there was no occasion at all for the second. And we think it clear that it was not designed by either of these sections to create a dedication of a public square by any thing which did not operate when made as a complete conveyance in fee to the county of lands properly defined as -intended for public purposes. It was evidently considered that a difference might exist in the legal condition of lands destined for common highways and for other purposes, and that a dedication for one might not suffice for another.
From time immemorial it has been recognized common-law doctrine that land might be dedicated for use as a common highway without grant or covenant. An intention to dedicate, and a sufficient public acceptance by user or otherwise, made out a complete piiblic easement. And where an open square was designed 'merely for the enlargement -of a highway, and intended to be used as such, it would fall.
But the decisions which have predominated, in this country, have undoubtedly assumed that the mere want of a grantee would not defeat a dedication of lands for well-defined public purposes. They have likened them to charitable trusts, which will not always fail for lack of a trustee. But as the general doctrine in the United States has not
There was no statute in force providing for the care of any public grounds not used as highways, except where they come under the control of incorporated cities and villages. The law regulating the laying out of plats required that it should appear not only what the public grounds were, but also whether they were “intended for streets, alleys, commons or other public uses,” and the plat thus designating these grounds, and properly acknowledged and recorded, operated as a conveyance to the county in trust for the purposes designated. The original statute contemplated such trusts as could be deduced from the plat itself, without resort to parol evidence. And where land had simply been designated as a public square, it did' not necessarily mean more than that it w.as for public uses, without showing what uses were intended. A dedication could be made
When the curative act of 1850 was passed, probably most public squares which had not been resumed by the proprietors had become set apart, by their concurrence, to specified and legal purposes; and it was intended by the second section of that act to legalize the uncertain description which had generally been made certain by the parties, where the public right was not in controversy, and to prevent the vagueness of the original dedicatory act from defeating it, but it was not intended to affect any trust for public squares, unless the form of the statute had been complied with by such an acknowledgment and record as would operate originally as a conveyance to the county, of all grounds whose purpose had been sufficiently designated. It legalized such dedications as had assumed the form of complete statutory conveyances, and were only defective in not fully defining the purposes for which public squares were intended.
We think it must be assumed as the generally understood law at this day, and as law here, that there may be a dedication effectual against the land owner, without a statutory and formal conveyance to the county. It would conflict with recognized usage to hold otherwise. But it is not to be denied that the introduction of this anomaly brings with it many difficulties, and has had no tendency to simplify these rights, or to diminish litigation upon them. And the authorities furnish no adequate light upon the subject. There are many cases showing that such dedications may be made. But there are few, if any, which give much aid in determining how and when such dedication is made irrevocable by the acceptance of the representatives- of the public. And we can only reach a conclusion on this subject by considering the various elements which must be taken into the account.
If the square in controversy was intended as an expansion of a street, and thus made for what in law would be merely a highway, there would be no practical difficulty in determining its condition. It would fall into the same category with other roads, and be governed by the rules applying to such easements. But the plat shows that it was to be kept as a block separate from the adjacent streets and bounded by their exterior lines. And all the evidence negatives the idea of any other design. It was meant for some other purpose than a passage way. As a street it could have been made public bjr the action of the
When a land owner sets apart portions of his plat for public purposes, it is done with the expectation that the use of such portions for those purposes will be advantageous to the rest of the property, or to the original proprietor. He has a right to expect that within a reasonable time the land will be put in condition to subserve those uses. If given for public buildings; there must be some reasonable assurance that they will be built, and if for ornamental purposes, that it will be made available for those. He cannot be bound to wait and abstain indefinitely from the use of his property upon the chance that at some time or other in the remote future the public use may be secured. And his efforts to induce such acceptance and use cannot
Where the land platted falls within a city or incorporated village, and there are corporate authorities having control over public lands and easements, there is no difficulty in holding that the acceptance must come from the authorized public agents, in order to give the public any rights in the dedicated premises. If those who have authority neglect or decline to act, then no force can be given to the acts of those who have no authority. The statutes have provided for certain cases of public user of highways, but for nothing further. And dedications for other than highway purposes require acceptance in a different way.
But it sometimes happens, and it was so in the case before us, that land is platted where no incorporation exists, and where there is no certainty that the locality will become an incorporated town or city within any reasonable time. The population required for an incorporated village must be at least three hundred to the square mile, and the village itself must contain that number. And while that must be a very small village which falls short of three hundred, yet there are such villages, and if persons should see fit to provide squares and other conveniences and adornments for these small settlements, there would seem to be no sound reason why their validity should not be maintained, although an intention to make a dedication for such limited purposes may not perhaps be so easily inferred as for larger settlements. In determining whether a dedication has become complete, it will become necessary in such a
Where land is dedicated as a public square, without other qualification,' and such dedication is accepted, the particular uses to Avhich it is devoted must be within the determination of one or both of the parties. The statute of 1850 indicates an intention to make such dedication sufficient, Avhere the plan is legally executed, and if so, it would seem to follow that the designation of the particular use should rest with the public aiAthoritics. But where there are no public authorities, and where the dedication is not statutory, the land OAvner must have it in his power to determine its purposes until by some action estopping him from further interference, he has bound himself to acquiescence in some definite use. And AAe think such acquiescence is not impossible.
If the owner should covenant with others, assuming to act for the general interests, that the land, upon conditions performed, should be inviolably and irrevocably devoted to any public use, unless those conditions were such as to require some permanent organization to perform them, it would seem that if the covenantees had any individual interest to connect them Avith the locality, an equity Avould arise to enforce the obligation.' The English act of Parliament before referred to appears to rest on such an assumption, and to regard such an obligation as binding. And if any voluntary agents should, at his request, and
The facts introduced in evidence in this case to show a complete and accepted dedication, are of different kinds and significance. The sales, by reference to the plat, were admissible to bear upon the original intent to dedicate. But upon this intent the plat is too explicit to require further aid, and the intent is not disputed. Such sales have no tendency to prove an acceptance by the public, or an estoppel in favor of the public. It is not material to consider how extensive the private rights would be in lands intended for pxxblic enjoyment, and not essential to any right of passage or individual profit. Purchasers by a plat must understand upon what conditioxxs pxxblic spaces are promised by it, and if the public do not accept the grant, there has been no violation of the grantor’s implied covenant. • Streets, affording easements directly profitable and necessary to the use of lots, may stand on a different foot
Neither could a public acceptance be made out by the testimony showing that the premises had been used by the inhabitants or by traveling showmen for purposes of amusement, like ball playing and circus performances. Any vacant private property may be and is usually resorted to for such purposes, and they are in no sense public purposes. It is at least questionable whether an express dedication could be maintained for any such objects. Pearsall v. Post is decidedly adverse to such an idea, and in the case of Lee v. Lalce, 14 Mich. R., 12, such acts were not regarded as very material. The use for agricultural fairs is repugnant rather than favorable to the idea of a public acceptance. Such a use is no way conducive to public ornament and to the embellishment of a village. The fairs occur at distant periods, and the close fences and unsightly buildings, necessary for the purposes of stock exhibition, must be during the remainder of the year eyesores rather than attractions. Such uses have never been recognized as calculated to show the acceptance of a dedication of public grounds in a village, and we think, as intimated in Lee v. Lake, that they have no such tendency. So far as any of the proof offered in the case has any significance, it tends to show the purpose of dedication to have been to create an ornamental park, which is now perhaps the commonest purpose for which dedications of public spaces are devoted. And the only evidence of any joint action bearing
It appears by the testimony of Baker that he had no idea of revoking his offer to dedicate until the year 1865, when he resumed- possession. It also appears that some two or three years previous to this (the witnesses not all identifying the time precisely), there' was some concerted action in which the- plaintiff is claimed to have taken part, for the purpose of leveling and fencing the square, and planting it with shade trees. A subscription in writing was made by the plaintiff and others, and a general meeting or “bee” was had to do the work expressly for the public, and the enclosure was made in this way.
It is not within our province to decide how far this proof went, but we regard it as material and very significant. Under repeated decisions of this Court such a subscription could have been enforced as a valid contra.ct. Underwood v. Waldron, 12 Mich. R., 73; Comstock v. Howd, 15 Mich. R., 237. If it was the understanding between plaintiff and these parties who joined in the enterprise, that this was to carry out the design of preparing the ground lor the purpose of its dedication as a square or park, we think that in the case of an unincorporated village no better mode of acceptance and agreement could be devised, and that there is no reason why the contract and arrangement, so completed, should not be held binding. lYe think there is nothing else in the case which would justify a conclusion that the dedication had become irrevocable, but we think these transactions, if proven to the satisfaction of the jury, would be sufficient. And if so established, the subsequent acts of Baker in resuming ¡possession gave him no rights, and were unlawful. The assessment or non-
The views we liave expressed render it unnecessary to refer more particularly to tbe several assignments of error. Tbe instructions and rulings in' conflict with tbeso views were erroneous. Tbe judgment must be reversed, and a new trial ordered, with costs to plaintiff in error.