77 Ark. 570 | Ark. | 1906
Lead Opinion
(after stating the facts.) Upon the threshold of the case here, appellants present the question that the cause of action stated in the complaint, and the relief prayed for, are not within the jurisdiction of a court of equity, and that for that reason the complaint should have been dismissed. Conceding that, the complaint stated no grounds for the exercise of equity jurisdiction, the cross-complaint of the defendants, in seeking to restrain the plaintiff from obstructing the streets and alleys upon which the lots and blocks owned by defendants abutted, stated a cause of action clearly cognizable in equity (Davies v. Epstein, ante, p. 221; Texarkana v. Leach, 66 Ark. 40; Packet Co. v. Sorrels, 50 Ark. 466), and thus supplied the defects in jurisdiction. Radcliffe v. Scruggs, 46 Ark. 96; Crease v. Lawrence, 48 Ark. 312.
Where the court of equity rightfully assumes jurisdiction for one purpose, it may grant all the relief, either legal or equitable, to which any of the parties show themselves entitled in the subject-matter of the controversy. Crease v. Lawrence, supra; Hankins v. Layne, 48 Ark. 544; Apperson v. Burgett, 33 Ark. 328; Conger v. Cotton, 37 Ark. 286; Bonner v. Little, 38 Ark. 397.
There remain two questions to dispose of, viz.: the claim of title of the Dickinsons, appellants, under the tax deeds and by adverse possession for the statutory period of limitation, and the right of appellants to require the opening of the streets and alleys laid out on the plat of the three additions.
The tax sale of 1896, and the deed executed pursuant thereto, describing the land as “part E. Y%. N. E. Id. sec. 32. T. 12 S. R. 1 W.,” were void because of the imperfect and uncertain description. Schattler v. Cassinelli, 56 Ark. 172; Cooper v. Lee, 59 Ark. 460; Little Rock & Fort Smith Ry. Co. v. Huggins, 64 Ark. 432; Rhodes v. Covington, 69 Ark. 357.
Nor does the two years statute of limitation run under a deed containing such description. A deed failing to describe the land is equivalent to'no deed at all. In order to put this statute in operation, the adverse holding must be under a deed purporting to convey the land pursuant to a tax sale. The deed under which appellants claim to have held does not purport to convey the title to any land, because none is described therein. Rhodes v. Covington, supra.
The second tax deed under which appellants claim title is void for a different reason. Conceding that the description “Erl. E. J/¡, N. E. pi, sec. 32, T. 12 S., R. 1 W.,” where the section is not in fact fractional, is sufficient to describe the whole of the east half of the northeast quarter, the record shows that appellee paid taxes for the same year on part of the same subdivision, and, this being true, a sale of the tract for the whole of the taxes assessed, when part of the taxes thereon had been paid, renders the sale void. A tax sale made for an excessive amount is void. Goodrum v. Ayers, 56 Ark. 93; Cooper v. Freeman, 61 Ark. 36; Kirker v. Daniels, 73 Ark. 263.
Appellant’s plea of the statute of limitation under this deed can not be sustained, for the reason that they were in possession of the land as tenants of appellee, and the possession was not adverse. They could not acquire title by limitation while occupying the lands as tenants of appellee. Possession thus held was not adverse to the rights of the landlord.
Did appellants have the right to require the opening of the streets and alleys indicated on the plats of the several additions ?
In the recent case of Davies v. Epstein, supra, we approved the generally established doctrine that “an owner of land, by laying out a town upon it, platting it into blocks and lots intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable.” It is equally well established that “merely laying out grounds, or merely platting and surveying them, without actually throwing them open to public use or actually selling lots with reference to the plat, will not, as a general rule, show a dedication.” Holly Grove v. Smith, 63 Ark. 5; Elliott on Roads, § 117; United States v. Chicago, 7 How. 185.
In the case at bar none of the streets and alleys were actually thrown open to use, and no sales of lots to third parties are shown .to have been made. However, we think that the fact that lots and blocks are still owned by the several alleged dedicators, or their privies, is of the same force in effectuating the' dedication inter sese as if sales of lots had been made to third parties. Either may object to a revocation of-the dedication, if the objection be manifested in apt time.
The question presented now is not so much that of the original intention on the part of the owners to dedicate to the public use, but whether the dedication has been revoked by the dedicators by an abandonment of the scheme in furtherance of which the original dedication was intended. None of the lots and blocks having been sold to third parties, and, the streets and alleys never having been thrown open to public use, neither the public nor any third parties have rights in the dedication. It therefore remained within the power of the owners to revoke the dedication. Elliott on Roads, § 150; Holly Grove v. Smith, supra; People v. Underhill, 144 N. Y. 316; Steinauer v. Tell City, 146 Ind. 490.
The revocation may be accomplished either by an affirmative act in recalling it, or by an abandonment of the scheme. The question of abandonment is one of fact, and may be said to occur where the object of the use for which the property is dedicated wholly fails. Bayard v. Hargrove, 45 Ga. 342; Board of Education v. Edson, 18 Ohio St. 221; Campbell v. Kansas City, 102 Mo. 326; Board Com’rs Mahoning County v. Young, 59 Fed. 96; State v. Travis County, 85 Tex. 435.
It has been often said that the fact of dedication depends wholly upon the intent, as manifested by open and visible acts, to appropriate the land to public use; and it is equally true that the fact of revocation by abandonment depends upon the intent, as manifested by open and visible acts, to abandon the purpose in furtherance of which the dedication was designed. Now in this case not a single lot has been sold in this “paper city,” nor a single one of the streets thrown open to public use. For more than twenty years since the alleged dedication no effort has been liiade by the owners or any one else, so far as the proof discloses, to bring the land within the limits of the incorporated town of Arkansas City. On the contrary, the land has been continuously fenced and cultivated as a farm. Where the fences were washed away by overflow, they were rebuilt, and the platted streets again obstructed thereby. The conclusion is irresistible from these circumstances that the whole scheme for making the additions to the town of Arkansas City has failed, and has been abandoned. It is true that one of the appellants testifies that he expects,'at some time, to sell the lots and to have the territory added to the town, but there it nothing in the testimony to warrant a definite or reasonable expectation that such scheme may soon be accomplished. It appears to be more a hope for future results rather than a definite present intention to bring about the result. There is nothing shown to manifest such intent until the parties had disagreed about the terms of renting the lands again for farm purposes, and this suit resulted. It was then too late, after the abandonment of the scheme, for either of the owners to insist upon a dismemberment of the farm property by throwing open the streets and alleys intersecting it.
We think the chancellor was correct in holding that the alleged dedication was not still in force, and that appellants could not demand the opening of the platted streets, avenues and alleys.
It is contended by appellants that no title passed to the streets and alleys on which the lots and -blocks of appellee abutted because the conveyances under which appellee holds describes the property conveyed only by lot and block numbers.
A conveyance of lots and blocks, describing them by numbers only, passes the fee to center of the streets and alleys on which they abut, subject only to the rights of the public to use the same as highways; and when the streets are vacated or the use abandoned, they revert to the owners of abutting lots. Taylor v. Armstrong, 24 Ark. 102; Packet Co. v. Sorrels, 50 Ark. 466; Thomsen v. McCormick, 136 Ill. 135; Bayard v. Hargrove, 45 Ga. 342; Harrison v. Augusta Factory, 73 Ga. 447; Elliott on Roads, § 886; Banks v. Ogden, 2 Wall. 57; 13 Cyc. p. 492.
It follows that, the dedication never'having been in anyway accepted by the public, and having been revoked by abandonment of the scheme for converting the lands into additions to the adjacent town, the title to the streets, avenues and alleys passed to the owners of abutting platted lots and blocks as grantees of the original dedicators. That is to say, they own to the center of the platted streets, etc., and of course where they own the lots on both sides it carries the title to the whole street.
This applies also, of course, to appellants as owners of some of the lots and blocks and their'title to the center of the streets on which their' lots abut is not disputed. Nor is their right to reasonable means of ingress and egress to and from their property disputed. That is expressly recognized, and not involved in this litigation. It is only their right to have the streets and alleys, as such, thrown open to use which is denied by appellee, and which by this decision is denied to them.
The decree is therefore affirmed.
Rehearing
on rehearing.
The court rendered a personal decree against J. W. Dickinson, one of the defendants, for the sum of $114,00 for rent for- the year 1903 for 30 2-5 acres of the land in controversy, referred to as a part of the southeast quarter of section 29 lying west of John’s Bayou. The evidence supports the finding of the chancellor as to the number of acres cultivated by Dickinson, but there is no satisfactory showing as to how much of it was owned by appellants and how-much by appellee. Counsel for appellee in their original brief, as well as the brief on petition for rehearing, do not poirit out the evidence sustaining the finding, and we are unable to discover any in the record.
.Appellant, J. W. Dickinson, in his petition for rehearing, contends that appellee agreed "with him upon a rental of $50 for a subsequent year, and urges this as an admissiomby appellee of the proper amount for the year 1903. This contention can not be viewed in any other light than as an admission by him that the proper amount of rent should be $50, and justifies us in sustaining the decree to that extent. So, if appellee will, within ten days, remit the decree for rent down to $50, the same will be affirmed; otherwise that part of the decree will be reversed, and the cause remanded; with directions to the chancellor to hear further proof and ascertain the amount due for rent.
In all other respects the petition for rehearing is denied, and the decree stands affirmed. The cost of appeal will be adjudged against the other appellants.