Evans v. Blankenship
39 P. 812
Ariz.
1895
Check Treatment
BETHUNE, J.

This is an action of trespass instituted by plaintiff, the appellant here, on the thirteenth day of June, 1891, against defendant and appellee, who was the city marshal of the city of Phoenix, for tearing away a fence erected by plaintiff around a tract of land in what is known as “Neahr’s Addition to the City of Phoenix,” and claimed by plaintiff as his property in fee, under a deed from the executor of David Neahr, deceased, dated July 25, 1885. Defendant admitted tearing away the fence, and justified as such city marshal, acting under the duties of his office. It is stipulated in this case, among other things, that on the fifth day of October, 1875, one David Neahr became the owner in fee simple of the northeast quarter of section 7, township 1 north, range 3 east, Gila and Salt River Meridian, containing one hundred and sixty acres, and that the land in dispute in this action is a part of said quarter-section; “that about the year 1880 said David Neahr, then being the owner of said quarter-section of land, platted the same into lots, block, streets, and alleys”; and that said David Neahr made sales of divers lots of land in Neahr’s Addition to the city of Phoenix during his lifetime, reference being had to the map of one Patrick, a surveyor, for a more complete description of the property sold; “that said David Neahr died prior to April 25, 1884.”

The question in this case is whether or not the lot of the land in dispute was dedicated by Neahr in his lifetime as a public square. The land in dispute appears on a map (which is a part of the record in this case) as a park laid out in walks, with a circle in the center, and is in size double that of the surrounding blocks or squares, which are cut up into lots, and divided from each other and the land in dispute by streets and alleys. There is no other designation given to this tract •in dispute than that mentioned, except the figures “570” on its sides and “300” on its ends, and among the references on the margin of the map these words: “Public Grounds, 570-300.” This map, as the record shows, is a copy of a map of Neahr’s Addition to the city of Phoenix made by H. L. Pat*314rick, a surveyor, on the sixth lay of March, 1880, and filed hy him in the office of the county recorder of Maricopa County ■on that day. It was shown that the original map, after being in the recorder’s office some time, had become much worn, and “about to fall to pieces,” ¡«id about the year 1889 or 1890 was copied into a book in the recorder’s office, at the instance of the city council of Phoenix, since which time the ■original became lost, and could not be found. It is contended by appellant that the evidence fails to show that the map relied on is a copy of a map made by David Neahr, or authorized to be made by him, of his addition to Phoenix; but we think the evidence on that point admits no other conclusion than that the map offered in evidence was a copy of the original, and the only map of Neahr5 - Addition made by Patrick. Patrick himself testifies that it was, and Osborn, the county recorder, testifies that it was a copy of the map which Patrick filed in the recorder’s office, which he saw in 1883, and which remained there from that time u ■ til 1889. There is no evidence contradicting these two witnesses, or establishing any ■other hypothesis than the fact tha t this map was the only one made by Patrick of Neahr’s Addition. The record discloses the fact that'Patrick made the map at the instance of one De Forrest Porter, with whom David Neahr made a contract during his lifetime, to wit, May 3, 1879, placing in the hands of said Porter, for sale and disposal, the said northeast quarter-., section of land comprising Nealy's Addition, and agreeing that said Porter should have full control of said property “in negotiating sales thereof, and in placing the same on the market”; and, using the language of the contract, “it is further agreed that the last describe! ' tract of land [said northeast quarter] is to be subdivided l ito lots, the size and numbers as shall be determined upon by the parties hereto hereafter, and shall be sold according to subdivisions so made.” Appellant claims that none of the acts of Porter and Patrick amounted to a dedication by Neahr of the land in question; and, truly, they might not have, h id no action been taken by Neahr to ratify and indorse the aei i of them both by his making sales of divers lots of land in Neahr’s Addition, reference being had to this map made by Patrick, at the instance of Porter, for a more complete description of the property sold, which the stipulation shows he «id. “His sanction, when *315given, relates back to the original transaction, and gave equal effect to it as if he, the principal, had been present.” Barclay v. Howell, 6 Pet. 498. These acts of Neahr show an irrevocable dedication of the land in question to the public, .and the fact of recording or not recording the map makes no difference. 4 4 The mere act of surveying land into lots, streets, and squares by the owner will not amount to a dedication; yet the sale of land with reference to such plat, map, or plan, whether recorded or not, will amount to an immediate and irrevocable dedication of such streets, etc., so far as the owner is concerned.” Dillon on Municipal Corporations, chap. 17, sec. 505; United States v. City of Chicago, 7 How. 185, 5 Am. & Eng. Ency. of Law, pp. 405-407, and many cases cited.

Purpose of the dedication: Appellant contends that, if there was any dedication of this land to the public, it was •only for the purpose of a site for capitol grounds when this territory should become a state, and introduced evidence that several times, beginning in the year 1883, David Neahr offered the land for that purpose in letters to the speaker of the house of the territorial assembly. But at that time, the dedication to the public having been complete, Neahr had no further control over it. Huber v. Gazley, 18 Ohio, 18; San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405; Maywood Co. v. Village of Maywood, 118 Ill. 61, 6 N. E. 866; Town of Lebanon v. Commissioners, 9 Ohio, 80, 34 Am. Dec. 422. While a party may sometimes testify as to his original intention in regard to the dedication to the public, the dedication is generally proved by evidence of the owner’s acts, together with the surrounding circumstances. Bidinger v. Bishop, 76 Ind. 244; McKee v. Perchment, 69 Pa. St. 342, 24 Am. & Eng. Ency. of Law, p. 9, and cases cited. By reference to the map of Neahr’s Addition in the record of this case, it will be observed that the street which would run through this land if extended- is marked on the map as “Park Avenue,” on both sides of the tract, which furnishes some evidence that the donor intended that the tract should be a park, whatever ideas he may after-wards entertained of its becoming a site for the capitol building.

As to the acceptance by the city of Phcenix: “In order to •dedicate property for public use in cities and towns and other *316places, it is not essential that- the right to use the same shall he vested in a corporate body. It may exist in the public, and have no other limitation than the wants of the community at large.” New Orleans v. United States, 10 Pet. 662. “And, where such lots and streets dedicated by plat are afterwards, included in an old and adjoining town by extending the corporate limits thereof, no proceeding? by the corporate authority for the condemnation of any such streets are necessary. They are already publie streets by 'prior dedication.” Fulton v. Town of Dover, 6 Del. Ch. 1, 6 Atl. 633. “The open square in a town may be dedicated to the public by its owner, and a formal acceptance by the town is not necessary to make the' dedication complete. Acceptance may be presumed if the gift is beneficial, and user is evidence that it is beneficial. No particular length of time is necessary to make a dedication binding.” Abbott v. Cottage City, 143 Mass. 521, 58 Am. Rep. 143, 10 N. E. 325. “The public authorities must be allowed a reasonable time for opening and improving public streets, as their resources and public neeessit / may allow and require. ’f Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269; Meier v. Railway Co., 16 Or. 500, 19 Pac. 610. This land did not become a part of the city of Phoenix until the year 1885, but certainly it had been accepted on the part of the publie by those persons who had bought lots in the addition. Archer v. Salinas City, 93 Cal. 43, 28 Pac. 339. And on the 6th of February, 1888, the city council of Phoenix, upon the petition of several citizens that the plaza in Neahr’s Addition be cleared, plowed, and ditched, instructed the street and alley committee to “clear up the plaza.” This alone, we think, was a sufficient and timely acceptance by the city, if, in fact, any acceptance by it was necessary.

The only remaining point to be noticed is as to the estoppel of the city by reason of its having assessed this land for municipal taxes. On that point we are satisfied with the doctrine enunciated in the case of San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405, wherein the court says: “When the block was dedicated to the use of the publie as a public square, it became a part of the public grounds of the town, and could not be legally assessed or taxed for slate, county, or municipal purposes; and the erroneous action of officials in the respects named could not impair the rights of the public or confer *317rights upon the defendant. The doctrine of estoppel has therefore no application.”

The judgment of the district court is affirmed.

Rouse, J., and Hawkins, J., concur.

Baker, C. J., having been of counsel for the appellee in the court below, took no part in the decision of said cause. »