Culmer v. Salt Lake City

75 P. 620 | Utah | 1904

McCARTY, J.,

after stating the facts, delivered the opinion of the court.

1 The first question presented by this appeal is, was there a dedication by the plaintiffs or their grantors of that portion of the alley which passes over and through their premises, and an acceptance by the public? Land is held to be dedicated when it is set apart by the owner for a public use. “A dedication may be either express or implied. It is express when there is an express manifestation on the part of the owner of his purpose to devote the land to the particular public use, as in the ease of a grant evidenced by writing. It is implied when the acts and conduct of the owner clearly manifest an intention on his part to devote the land to the public use.” Schettler et al. v. Lynch et al., 23 Utah 305, 313, 64 Pac. 955. And the authorities all hold that, to malte a dedication complete, there must not only be an intention on the part of the owner to set 'apart the land for the use and benefit of the public, but there must be an acceptance of the dedication by the public.

2 It is claimed by appellant that the facts in this case establish an implied dedication on the part of the plaintiffs and their grantors. Applying the foregoing rules as declared by this court in the case of Schettler et al. v. Lynch et al., supra, to the facts in this case, can it be successfully maintained that the acts and conduct of the plaintiffs and their predecessors in interest in relation to this alley were of such a character as to induce or justify a well-founded and reasonable belief that they intended to dedicate their interests in the alleyway to the public, to be used as a public highway? We think not. • Elliott on Roads & Streets (2d Ed.), sections 124, 125.

The evidence is undisputed that the use of the alley has been practically confined to parties who owned or occupied property within that portion of block 70 of Salt Lake City Survey which lies west of Commercial street, and through which the alley passes. Of these parties, the heirs and their grantees of the estate of Emiline Free Young have an interest in and a right to use the alley, which right has never been denied or questioned by the plaintiffs herein. And while others owning property in that neighborhood may have used the alley under circumstances and to such an extent as to create an easement therein, which, however, is a question not involved herein, and not necessary for us to decide, yet it is plain that the limited uses made of the alleyway, when considered in connection with the conduct and acts of plaintiffs in relation thereto, were not such as would warrant or justify a belief that they intended to throw it open as a public highway. The expense of keeping the alley open and in repair has always been borne by private parties who owned or occupied property abutting on or within the immediate vicinity thereof, and never by the public.

3 Appellant further contends that the alleyway in question became a public highway by operation of law, under section 2066, vol. 1, Comp. Laws 1888, which provides that “all roads, streets, alleys and bridges laid out or erected by others than the public, and dedicated or abandoned to the use of the public, are highways. A highway shall be deemed and taken as dedicated and abandoned to the use of the public when it has. been continuously and uninterruptedly used as a public thoroughfare for a period of ten years.” In order to bring a case within the foregoing provisions of the statutes, it will be noticed that it must be made to appear that a highway ‘ ‘ has been continuously and -uninterruptedly used as a public thoroughfare for a period of ten years.” Now, the uncontradicted testimony in this case- shows that the plaintiffs have not only claimed, but have exercised, the right to close and open at will that portion of the alley, which passes over and through their property. This they have repeatedly done, without any protest being made by either the city or people. On some occasions they have closed the east end of the alley for two months at a time. They have also imposed certain restrictions on parties who desired to take loaded wagons through the alley, which, so far as the record shows, have always been complied with. Therefore we do not think there has been the continuous and uninterrupted use of the alley in question as a public thoroughfare, as is contemplated by the provisions of the statute above referred to.

The judgment is affirmed, with costs.

BASKIN, C. J., and BARTCH, J., concur.