Baker v. Vanderburg

99 Mo. 378 | Mo. | 1889

Black, J.

The plaintiff and appellant is the owner of lots fronting on a block of ground in McGee’s addition to the City of Kansas. He brought this suit for himself aiicl all other persons similarly situated to have the block declared a public park, and to restrain defendants from erecting buildings thereon.

Mrs. Eleanor R. Campbell owned the forty acres of which the block in question is a part; and, in 1850, she and her husband, John Campbell, conveyed it to Pollard, who conveyed it to Riddlesbarger, in 1857, and he conveyed it to N. Holmes and E. M. McGee in February of the same year. The property was then within the corporate limits of the City of Kansas; and on June 3, 1857, Holmes and McGee made a plat of this and other land, and laid the same off into lots, blocks,, streets and alleys, and designated the same “McGee’s addition to the City of Kansas.” The plat was executed and recorded according to the statute law of this state. There is shown upon this plat a block of ground, two hundred and forty-seven by two hundred and seventy-four feet, inside of the streets by which it is surrounded. Within the lines bounding the block, and on the face of the plat, are written these words: ‘ ‘ This park is reserved from public use, and title kept in proprietors, E. M. McGee, N. Holmes.”

The plat was acknowledged before the clerk of the circuit court, and the certificate states, .among other things, that Elijah M. McGee and Nehemiah Holmes acknowledged the same to be their act and deed, “adhering, however, to the reservations made in the specifications made therein as to parks.” In general the lots have a width of forty-nine and a half feet, and front on the north and south streets, and are numbered. The square in question is not numbered or laid off into lots, and the lots around have a front of only twenty-five feet, and they face towards the square. There is one other block on a different part of the plat laid off in like manner, and having written on the face of it the same words, which block has never been claimed to have been dedicated to public use.

In 1865, Holmes and McGee quitclaimed, each to the other, a large number of lots; and, in October of that year, McGee conveyed to plaintiff some thirteen lots, three of which front on the square in question. Plaintiff’s evidence is that he paid a higher price for these three lots because they fronted on the square; that, in his negotiations for them with Y incent, who was McGee’s agent, the block was said to be a public square. He speaks of a subsequent conversation with Holmes, in which the latter said they were ready to turn it over as soon as the city was ready to improve it. The evidence shows that other persons purchased lots fronting on this square, and that the property there was sold at higher prices than at a short distance away from it. Many witnesses testified as to what McGee said about this block when endeavoring to sell property. This evidence is very indefinite, and amounts to about this, that he and Holmes were holding it for a park when the city saw fit to improve it. On one occasion. Holmes offered to defray Iris share of the expenses in improving it. The plaintiff’s evidence shows that, prior to 1869 or 1870, the block had not been taxed, and a committee of the common council called upon McGee, and he told them he intended to make a park out of it, but he would not dedicate it to public use. Thereafter, the property was assessed by the city. The then assessor says he assessed it back for several years, but cannot say for how many. The agent of McGee says it was assessed back to the time the land was platted, the taxes amounting to eight hundred dollars, and that,Holmes and McGee paid these taxes.

As before stated, the proprietors of the addition acquired title through Mrs. Campbell. Her deed to Pollard was acknowledged in 1850, before a justice of the peace, and, therefore, defective. After the death of her husband, and, in 1869, she gave notice that she would release to purchasers of lots in the forty acres, and, pursuant thereto, did execute deeds of release to the then claimants of lots, but at that time made no deed to any one for the block in question. In 1871, she caused the block to be enclosed by a fence. Thereupon McGee, who was her brother, gathered together a number of persons, and, under the inspiring influence of a barrel of beer, made a bonfire out of the fence. His declarations made on this occasion, to the effect that the square “shallbe a park,” and “must be a park,” were put in evidence. At this time some buildings had been erected on a few of the lots surrounding the square.

In 1880, and after the death of Holmes and McGee, the City of Kansas commenced proceedings to condemn the land for a park, but they were dismissed, and, in 1882, Mrs. Campbell conveyed an undivided third to George I. Seeney, who claimed an undivided half through the -heirs of McGee. She also conveyed a one-third to the widow and heirs of Holmes. Suit for partition was then instituted between Mrs. Campbell and these persons to whom she conveyed; and, pursuant thereto, the commissioners divided the square into lots, and assigned part of them to Mrs. Campbell, part to Seeney, and the residue to the heirs and widow of Holmes. The defendants in this suit acquired the lots claimed by them from the persons to whom they were assigned bythe partition decree.

The evidence shows that from the time the plat was filed down to 1871, the block was unfenced, open and not different from many other open and unimproved parcels of land in the same locality. It was never at any time improved or used as a park, but was simply an open piece of ground devoted to no particular use whatever.

This suit was commenced in August, 1885, a notice of an intention to bring it having been served on the principal defendants in July, 1885. At and prior to the date of that notice the defendant, Vanderburg, had erected upon his three lots two brick buildings, and had completed the foundation for a third one. The defendant Young acquired her lots from Mrs. Campbell, and erected two substantial brick houses there in 1884. Mrs. Boultt, another defendant, had completed one brick house, and had excavated the foundation for another. The defendants all paid' full value for the property purchased by them.

1. Counsel for the appellant present a great many propositions of law based upon the assumption that Holmes and McGee, by the plat, dedicated the square to public use as a park. It becomes necessary at the outset to determine whether this assumption is well founded. The plat, as we have said, was executed, acknowledged and recorded in conformity to the statute. Section 8, of 2 Revised Statutes, 1855, page 1536, provides that such plat “shall be a sufficient conveyance to vest the fee .of such parcels of land as are thereon expressed, named, or intended for public uses in the county in which such town * * * ‘ is situate, in trust and for the uses therein named, expressed or intended, and for no other use or purpose.” To what public use did the proprietors devote this parcel of land? They say on the face of the plat, “This park is reserved from public use, and title kept in the proprietors.” This statement is in effect repeated in the acknowledgment. They not only say the title is kept in themselves, which would have passed to the county had the square been devoted to public use, but they say the property is reserved from public use. Stronger language could not have been used to show that they did not intend to devote the parcel of land to public use. This statement completely overcomes any inference that might have been drawn had no statement been made, or had the word “park” only appeared upon the face of the plat.

But the contention seems 1 o be in effect, if not in terms, that we should strike out and disregard all this statement after the word “park.” We know of no rule of law, ancient or modern, which gives to the courts power to deal with contracts in any such a way. We must take the statement as a whole, and when that is done it is shown beyond all doubt that the square was not, by the plat, devoted to public use.

Where there is a map or plat, though not executed and recorded in conformity to the statute, and on which plat is laid - off streets and alleys and other public grounds, and the owner sells lots with reference to the. plat, his acts in making such sales amount to a dedication of such parcels as appear to be designed for streets and other public purposes. 2 Herman on Estoppel and Res Judicata, sec. 1147. In view of this uncontroverted principle of law, the plaintiff put in evidence a vast number of deeds executed by Holmes and McG-ee to various persons including the plaintiff. These deeds convey the lots by their numbers and by the number of the blocks. The streets and alleys had before been irrevocably devoted to public use, and the deeds could do no more. They cannot, of themselves, make a public park out of this square, for the very plat to which they refer shows that it was reserved from public use. So too in respect of the various deeds made by Mrs. Campbell to the many lot owners. By these deeds, she ratified the plat for all that it purported to say or do; but, as we have seen, the plat did not profess to devote the square to public use, but on the contrary reserved iq from such use.

2. The plat and the deeds made by Holmes and McGee, combined, did not work a dedication of the square, and the question arises whether the acts and declarations of these persons show a common-law dedication. For the purposes of this question, we shall treat Holmes and McGee as the owners of the land when the addition was laid out, laying out of view the claim of Mrs. Campbell, asserted by reason of her former defective deed. A dedication of land to public use need not be evidenced by writing. It may be manifested by acts and declarations. Dedications, it has been said, have been established in every conceivable way by which the intention of the party could be manifested. Washb. on Eas. [3 Ed.] 186. But the acts and declarations of the land-owner, indicating the intent to dedicate his land to public use, must be unmistakable in their purpose and decisive of their character. It. 188. There must be a clear intention on the part of the owner to devote it to public use. Brinck v. Collier, 56 Mo. 160; Landis v. Hamilton, 77 Mo. 560. An intent on the part of the owner to dedicate is absolutely essential, and, unless such intention can be found in the facts and circumstances of the particular case, no dedication exists. 2 Dillon, Mun. Corp. [3 Ed.] sec. 636. The principal circumstances to show a dedication here are, first, the fact that these lots around the square were sold for a higher price than those not facing upon it; second, the reported declarations of Holmes and McGee. A third circumstance is the fact that’ McGee in 1870, while mayor of the city, and in his official capacity, approved an ordinance appropriating one thousand dollars to O’Flaherty and Koehler for one hundred maps of the City of Kansas, and on which it is said this block is marked “park.” This map is not in the record, and we do not know what it shows. Sufficient appears, however, to show that its preparation and sale was a private enterprise on the part of these civil engineers. The approval of the ordinance did not make McGee assert, as true, the statements made upon the map.

The declarations of Holmes and McGee occurred many years ago, and they died some ten'or twelve years before the institution of this suit. These statements, as reported, are loose and uncertain, and the most, to be made out of them is, that they, especially McGee, intended to turn the square over to the city for a park or market place when the city was ready to accept and improve it. This, at most, was but a conditional offer, and was never accepted during the lifetime of these proprietors, or at any other time. On the other hand, the persons who purchased these lots knew, from the public records, that this square had not been devoted to public use. Under this state of the case, we should expect to see the deeds to them make some statement to the effect that this square was a park, but nothing of this kind is said in them. McGee declined to convey the square to the city when called upon by a committee of the common council, and would not donate it for apublic park ; and thereafter the property was taxed as other private property. These substantial acts are far more valuable, as evidence, than the loose reported declarations ; and are strong evidence to the effect that the proprietors had not at that time devoted the property to public use.

To constitute a common-law dedication there must be an acceptance by the public. 2 Herm. on Est. & Res. Ad., sec. 1142. We have held where there is an unconditional attempt or offer to dedicate a parcel of land for a public square, and such offer is followed by adverse use by the public, that such use is a sufficient acceptance. No formal acceptance by the corporate officials is necessary in such cases. Price v. Town of Breckenridge, 92 Mo. 382. The acceptance is sufficiently indicated by common use, certainly so in the case of a square or park. Abbot v. Inhabitants of Cottage City, 143 Mass. 521. Such use is often a sufficient acceptance of a street. Rose v. City of St. Charles, 49 Mo. 510.

Had these declarations of McGee and Holmes been followed by adverse use by the public, then we would find no difficulty in making them harmonize with that use. But there is no evidence, whatever, that the public ever used this square as a park. The contrary is affirmatively shown. Besides all this, the plaintiff stood by and saw these defendants expend their money in building up this property, and now comes forward and asks the court to declare the block a public park on the uncertain evidence produced. This cannot be done, and the judgment dismissing the petition ought not to be disturbed.

We have not made mention of some of the evidence because it is of no value on the question of dedication. The respondents insist that they hold under Mrs. Campbell, and are not affected by any dedication by plat or otherwise made by Holmes and McGee; but, with the result reached that no dedication is shown even as against those claiming under Holmes and McGee, it is unnecessary to consider the question thus raised. Some other questions are discussed in the briefs, but they are subordinate to those before ruled.

The judgment is affirmed;

Ray, C. J., and Barclay, J., absent; the other judges concur.