Briel v. City of Natchez, 48 Miss. 423

Briel v. City of Natchez

48 Miss. 423 | Miss. | 1873

Simrall, J.:

Was there a dedication of the extension of Wall and Canal streets and of Green street to the jrablic ? Green, the proprietor of the land over which the extension and the new streets was made, proposed to the city of Natchez to lay out these streets; the offer was formally accepted by the city. Afterwards Green sold and conveyed parcels of the property bounding the lots on the streets.

*435The difficulty of supporting a dedication of private property for public use grew out of technical requirements of the common law, and the restrictions of the statute of frauds in creating and transferring estates and interests in real estate. The trouble was, how to alienate that which passed by grant without a deed; and after that trouble was got over another presented itself: there must be a donee as well as a donor, and who was the donee consenting to accept the grant in case of a dedication ? See Vick v. Vicksburg, 1 How. 427, et seq. In 19 Johns. 186, the laying out of streets by a proprietor over his land, and selling off lots with reference thereto, is assimilated to a contract. The proprietor engages to give the ground for the streets, according to his plat, upon the condition that the public shall accept and ratify it. Such acts are irrevocable; it is too late after they are done to resume absolute control over the property thus devoted to the public use. Nor is it necessary, in order to manifest a “ratification” or acceptance of the dedication, that the municipal authorities should presently open the streets; that may be posponed until the advancing population and private improvements make it necessary. 1 Wend. 487; ib. 270.

No particular time is necessary as evidence of a dedication; as, if a man builds a double row of houses opening into an ancient street at each end, and sells or or leases the houses, the intervening space becomes instantly a highway. Woodyear v. Hadden, 5 Taunt. 125.

In this country, so rapidly filling up with population, new cities and towns springing up as emigration and settlement advance, it might well be expected that there should be such applications of the English doctrines of prescription and dedication as would comport with the new circumstances. We could not, without great public inconvenience, exact as strict *436and as solemn acts of dedication, and as long a user by the public, as in the old country. The rule has obtained general sanction, that, if the owner of urban property has laid it off into lots intersected by streets, and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets and alleys, such action will amount to a dedication of the streets and alleys to the public. Irwin v. Lewis, 9 How. (U. S.) 10; Rowan v. Portland, 8 B. Monroe, 232; Vicks v. Vicksburg, 1 How. 379. The vendees will be considered as having given a consideration for the dedication. Godfrey v. City of Alton, 12 Ill. 29. If, at the time, the town or city has no corporate existence, the right to use the streets and control over them will vest in the corporation so soon as created. Waugh v. Leach, 28 Ill. 488. Such dedications are considered as estoppels in pais, which cannot be revoked, as it would violate good faith to the public- as well as to those who have acquired rights with a view to the enjoyment of the easement. Cincinnati v. White, 6 Pet. 421. The estoppel in pais conveys no larger meaning, than that 'the proprietor has done such acts of dedication as that the public and individuals, who have acquired private rights, would be misled and deceived, if he were permitted to aver that his acts had another purpose and intent.

To consummate a dedication, there must be also an acceptance, either by the formal act of the local municipal authority, or it may be inferred or implied from sufficient circumstances. People v. Jones, 6 Mich. 176; Fulton Village v. Mehrenfield, 8 Ohio St. 440.

The dedication of the streets in controversy, and the acceptance by the city, are distinctly stated in the bill. Has the city lost its rights by non-user ? Can the statutes of limitations be applied to this case ?

Dedications of private property to the public enjoyment must always be considered with reference to the *437use to which the thing is to he appropriated — whether the easement is of a highway, a street, a common, or a park ; all rest upon the same general doctrine. Nor is it necessary that there should he a user following closely upon the dedication, as where streets are extended over suburban property. It may be years before the convenience of the public, or of those who live upon adjacent lots, on account of the paucity of population, requires that they should be formally taken in charge by the municipal authorities. Such dedication of streets in a growing town must have such an interpretation as will comport with the common understanding. The proprietor of the ground ought to be held as proclaiming and offering to the public to change his property from rural to urban, to sell it in small parcels with reference to streets and squares. Because the neighborhood is not rapidly settled up, and years may elapse before the city undertakes to work and grade the streets, or before the necessity arises, the city should not, by such non-user, be held to have relinquished the easement and abandoned its acceptance of the dedication. Such form of dedication as that set forth in the bill is equivalent to a grant; to deprive the public of it, there must be such oped, notorious and continued individual use of the property as to give notice to the city of adverse occupation and use. It must have been so open, notorious and hostile as to have compelled the city to acquiesce in it, or to have interposed to save its rights. If there has been this sort of defiant occupation and use, referable to an adversary claim, and continued long enough, then the presumption may arise that the city and the public have relinquished or abandoned its rights.

The complainant alleges that after Green, the proprietor, had devoted these streets to the public use, the city for some time continued to use them, keeping them in repair; that as the necessity to keep them in *438order ceased, they were neglected; nor did the convenience of the public and residents require that these streets should be re-opened until shortly before the bill was filed. The dedication by Green and the acceptance occurred .in 1819; when the non-user begun is not stated. The obstructions put by the defendants on the line of the streets are averred to have been clandestine, not such as to notify the complainants that they were the assertion of the proprietary rights by them. From the allegations of the bill enough does not appear to warrant the conclusion that a conclusive presumption of relinquishment or the bar of the statute of limitations has attached. Indeed, the complainant makes allegations to obviate the effect of non-user, and to avoid the bar of the statute.

But the city of Natchez does not claim, as against the defendants or him or those under whom they derive title, an easement, acquired by long use, so as to raise the presumption of an original license. An easement thus acquired imposes a servitude upon property, and, to the extent of its efficient use, limits and abridges the proprietary rights of the owner of the fee. The right of the city to the enjoyment of these streets does not arise out of long use, nor is it vindicated by prescription merely. The defendants are not the owners of the fee of the streets, subject to the servitude of the easement; nor was this servitude acquired by prescription against the original proprietor. The right of the city begins in a substantive and formal devotion of the property to the public use. As against Green, the dedicator, it is of equal consideration in law as a grant. The dry fee of the servient property remained in Green. The sales and conveyances of the adjacent lots stopped at the margin of the streets. If the city had lost the easement by abandonment and non-user, Green, or his heirs, would take the property by the original title discharged of the incumbrance of the servitude. The *439defendants, never having succeeded by mesne conveyances to Green’s title to the fee of the streets, cannot set up title in themselves by abandonment and by relinquishment of the city. They might, perhaps, enter upon the soil, asserting a claim thereto, and by notorious public acts of exclusive ownership oust the city and toll Green’s heirs of their right. But to perfect a title by ouster and adverse possession against the city, it is not enough merely to put the soil of these streets to some private use, whilst the locus in quo was not needed for a hig’hway, but such appropriation and use must be under a color of title in themselves, hostile to the city, and an assertion of exclusive proprietary rights in themselves.

The last point made by the appellants is, whether this a proper case for equity jurisdiction.

It is said that the “ right ” of the city ought first to be established in a court of law. It is conceded by Judge Story, 2 Eq. Jur., § 925 d, that the American courts have departed from the more rigid English rule on this subject, proceeding, perhaps, on the idea that the rights of all parties can be as well protected in the one tribunal as the other. But in all cases of suits in chancery, in the first instance, there must be the element of irreparable mischief, or the inadequacy of damages at law to redress the injury, and also the feature of a continuation of the nuisance so that there is something of the feature of perpetual injury. The right of the complainant also must be clear. In Commonwealth v. Rush, 14 Penn. St. 186, the bill was sustained, where a private building was erected upon land reserved for a public square, and which had been illegally sold by the authorities. The like remedial interposition will be made against the obstruction or pollution of water-courses, the diversion of streams from mills; so the enjoyment of public places will be protected against encroachment. Lewis v. Stein, 16 *440Ala. 214; Wolfe v. Frost, 4 Sandf. Ch. 72; Fish v. Wilber, 7 Barb. 395; Frink v. Laurence, 20 Conn. 117; Robinson v. Byron, 1 Brock. 588; Universities of Oxford and Cambridge v. Richardson, 6 Ves. 706; Hills v. Miller, 3 Paige, 254; 2 Story Eq. Jur., §§ 926, 927.

If there be a well-founded doubt of the right of the city to the user and control of these streets, the chancellor may hold up this suit until the city has established its right, and the complainant may be required to test and settle his right at law.

We think that there is no error in overruling the demurrer.

The decree is affirmed.