City of Dodge City v. Wright

48 Kan. 667 | Kan. | 1892

Opinion by

Green, C.:

This was an action to restrain the city of Dodge City from interfering with and disturbing the plaintiff below in his possession and right to a .certain strip of land in the city limits as a street, which he had inclosed, and which the city authorities attempted to break down. The plaintiff claimed the property under a deed from the Dodge City Town Company. The city alleged that the town-site had been duly entered and patented for the use and benefit of the occupants, and was conveyed by the probate judge to the occupants, and that a portion of the same was platted into lots, blocks, streets, and alleys, and the plat had been filed in the office of the register of deeds; that the streets and alleys as shown by the plat had been occupied and used as public streets, and lots and blocks abutting on said streets had been sold with reference to the streets so platted; that by reason of the filing of such plat the streets and alleys as marked thereon had been dedicated to the public use as such. The district court granted a perpetual injunction, restraining the officers of the city from interfering with the plaintiff in his possession. The city brings the case here. The controlling question in this case is, whether the land in controversy was dedicated to the public use as a street.

The first error assigned is the refusal of the district court to permit the plaintiff to introduce a plat of R. M. Wright’s addition to the city of Dodge City. It is claimed by the plaintiff in error that this was a plat of an addition filed in the office of the register of deeds in 1884 by the plaintiff below, and showed that an addition was platted just east of the city and adjoining the land in controversy; that the streets corresponded to the streets of the original plat. This does not appear in the record. The plat is not made a part of the record, and there is no statement as to what the city proposed to, prove. “Error cannot be predicated upon a ruling excluding testimony, where the evidence desired is not shown in the record, nor any statement made as to what the proposed testimony would be.” (The State v. Barker, 43 Kas. 262.)

It is next urged that the court erred in sustaining an objection to the admission of certain evidence as to the use of the land in controversy. The defendant below expressly disclaimed any intent to prove user for the period of 15 years to establish dedication. There was only one other purpose for which evidence of the use of the property could be introduced; that would be to show acceptance by the city of a dedication by the owner of the land. There was no allegation of dedication by tbe owner, and such user to show acceptance was not properly an issue in the case, and such evidence, was therefore incompetent. The plat offered in evidence was not acknowledged, and there was nothing to show that it had been made by the owner of the land. It had not even been filed in the office of the register of deeds. There was nothing in the evidence to establish either a statutory or common-law dedication.

It is recommended that the judgment of the district court be affirmed.

By the Court: It is so ordered.

All the Justices concurring.