City of Covington v. McDonald

| Ky. Ct. App. | Feb 2, 1893

JUDGE LEWIS

delivered the opinion op the court.

The act of appellee, McDonald, complained of in this action by appellant, the City of Covington, is the inclosnre, as part of his premises, of the southern half of what is claimed to be Sixteenth street, between Madison and Washington streets; and the question involved is, whether the parcel so inclosed is part of a public street.

It appears that in a division of lands of Richard Southgate, made many years ago, a block now lying within the corporate limits of Covington was allotted to Richard TI. Southgate, and in 1860 that block was divided between his two sons, Richard H. Southgate and C. F. Southgate, lot No. 1 falling to the latter, who in- conveyed it to Clements, under whom •McDonald holds by lease for a term of years that was. executed in 1887.

There is no evidence of an express dedication of the land in dispute for a public street having ever been made; and such dedication, if established at all, must be by implication from the language of deeds by which the title has been successively passed. On .the map of the lands of Richard Southgate as divided a dotted line was made along the center of what is called Sixteenth street, between Madison and Washington, though it was not designated by name as a street. On the contrary, a note was written on the map to the effect that the sxirvey and calculations were made from the center of streets, supposing that if ever laid out in lots the streets would be extended.

In the report of commissioners who made the division between Richard H. Southgate, Jr., and C. F. Southgate, in 1860, lot No. 1 of block 12, allotted to C. F., is described as beginning at the junction of the center of Sixteenth and Madison streets; thence with center of Madison street southward 225 feet to lot No. 2; thence extending in parallel lines westward 269 feet to a fifty-foot street.

About the same description of lot 1 was given in the deed of partition between Richard H. and C. F. South-gate, and the subsequent deed of the latter to Clements. But the strip of land in dispute is included in all the plats and deeds, and title thereto conveyed to the respective vendees, without any condition or reservation. So that the most that can be implied from the language of the deeds is, that Sixteenth street was recognized as an existing land-mark. It does not,' however, follow that part between Madison and Washington, as now claimed by appellant, was so recognized, but rather that part east of Madison, which is now a public street. Up to the time lot No. 1 was leased to and taken possession of by McDonald, it was a common uninclosed, and though Sixteenth street east of Madison may have been used as a public thoroughfare, it had not been so Used west of Madison, nor, except the north half, is it even now fit for nse.

It has been held by this court that when a sale of lots takes place according to maps showing squares, lots and streets laid out, and such lots are conveyed by deeds describing them as binding on or by designated streets, a dedication may be implied for benefit of purchasers of adjacent lots whose rights thus become involved, whether the municipality has formally accepted the dedication or not. (Rowan v. Town of Portland, 8 B. M., 237; Wickliffe v. City of Lexington, 11 B. M., 155.) But lot No. 1 was not so described in any of the deeds by which title to it was passed; nor are the rights of purchasers from a common vendor at all involved in this case. On the- contrary, lot No. 1 is so described as to include a part of Sixteenth street extended, and in virtue of the deeds title to the parcel in dispute has been conveyed to. the purchaser, Clements, as had been done to his vendor; and in such case it must appear there was a dedication by the original or some intermediate proprietor of the land claimed as a street, and that it was accepted by the municipality, otherwise a subsequent purchaser can not be divested of the title or possession. All that can be reasonably inferred from the various deeds and maps is that an extension of Sixteenth street might, some time in future, be made, when the owner .could, at his election, dedicate his land for the purpose, or demand compensation. But the evidence in this case shows that at the date of the original division of Richard Southgate’s lands, as well as when the partition was made between Richard H. and C. P. Southgate, the land described as lot No. 1 was not needed for a public street, and would probably not, if dedicated, have been accepted and appropriated for that purpose by the city of Covington; for .thongh now claiming the parcel in dispute as part of Sixteenth street, it has not been improved by the municipality.

It seems to us very clear there never has been any dedication by Clements, or any of his vendors, of the land claimed by appellant, and the lower court, therefore, properly instructed the jury to find for defendant.

Judgment affirmed.