34 Kan. 277 | Kan. | 1885
Lead Opinion
The opinion of the court was delivered by
The question in this case is, whether a certain strip of land three hundred and and twenty feet long and sixty-five feet wide is a part of Eighth avenue, in the city of Topeka. By the recorded plat of one of the additions to the city of Topeka, it app.ears to constitute a part of the avenue; but William H. Brooks jr., the plaintiff, claims that it has never been dedicated to the public, and that he is the owner thereof. He brings this action against the city of Topeka, together with its engineer and street commissioner, alleging ownership in himself, and that the city and its officers were attempting and threatening to take possession of the same; and he asks that they may be enjoined from so doing.
The district court found generally in favor of the defendants, and rendered judgment in their favor. The plaintiff complains here that this judgment is not sustained by sufficient evidence, and is contrary to law. From the record it appears that in 1859 D. H. Horne was the owner of a quarter-section of land lying immediately west of Topeka as it was then organized. In that year he surveyed and platted an addition to the city of Topeka on the northern portion of said tract, naming it “Horne’s addition”, and making it conform
The plaintiff cannot be said to have purchased the land from Lakin without notice of the dedication. In addition to the notice imparted by the recorded plat and the use of the street by the public, the deed from Lakin to himself makes special reference to the Chase deed wherein Lakin had previously recognized and ratified the plat of Horne’s addition. It is referred to in the following language: “Also excepting two acres out of said tract conveyed to Enoch Chase by David L. Lakin, by deed dated March 13, 1862, and recorded in vol. 6, page 306, of Shawnee county records.” Indeed, if there had been no formal dedication of the land by Lakin, the action of the plaintiff subsequent to his purchase would constitute very strong if not conclusive evidence of the dedication of the land for the purposes designated on the plat. Since he acquired title to the Lakin tract he has made numerous sales of land and town lots in Horne’s addition by reference to and in accordance with the recorded plat. Some of the lots thus conveyed by him- face upon Eighth street, and upon that portion of it which is now in dispute, and in each of them reference is made to Horne’s addition, by the plat of which the strip of land now claimed by him is made to constitute a part of the street. But, in our opinion, a dedication of the disputed sti’ip of land as a portion of Eighth avenue had been completed before the plaintiff acquired title from Lakin; and as it does not appear to have been vacated since that time, it must be held to constitute a part of Eighth avenue.
The judgment of the district court will therefore be affirmed.
Concurrence Opinion
I fully concur in the judgment, but do not agree to all said in the opinion as to the reasons therefor.