32 Iowa 346 | Iowa | 1871
This general form of demurrer is allowable when interposed, as in this case, to a petition in equity (Rev., § 2877); and raises the question whether the facts stated in the petition entitle plaintiffs to the relief prayed therein.
The material facts alleged are, that one Henry P. Scholte was the original proprietor of the town (now city) of Pella, in Marion county, Iowa; that he laid off the same in blocks, lots, squares, streets and alleys, and platted the same accordingly ; that on the plat thus made out, by the order and direction of said Scholte, there was designated and described thereon, and near the center thereof, a certain square or open space, as “ Public square; ” that Scholte exhibited this plat, with said square so designated thereon, to divers and sundry persons, among whom were some of the plaintiffs, and others were the grantees of said Scholte, under whom the other plaintiffs claim; that said Scholte pointed out said plat, with said square so designated thereon, and stated and represented that the same was a public square, and was to be reserved and maintained for the public use and benefit; that said square was block twenty-six, as the same then was and is now numbered on the plat of the city; that some of the plaintiffs, and the vendors of others, who purchased lots situated on and adjoining .said block or “public square,” as the same was
It is further averred that said Seholte, in 1864, conveyed said “ Garden square ” to his wife, the defendant in this case, who, since the commencement of this action, has intermarried with Robert R. Beard; that said conveyance was made without any valuable consideration and for the purpose of enabling said H. P. Seholte to divert said square from the purpose and use to which the same was originally dedicated and intended, and to deprive the citizens of Pella, and especially the plaintiffs and other owners of lots fronting on the square, of the use and benefit thereof as an open and unoccupied space or square, and to enable said Seholte, in' violation and disregard of his statements and representations in respect thereto, to appropriate the same to his own use; that the defendant had full knowledge of all the facts alleged, and took said conveyance, well knowing the purpose for which it was made.
It is also averred that said square has always been used by the public as a public square, open and unoccupied by buildings of any kind; that on the 30th day of August, 1868, Seholte died, and that the defendant now threatens to lay off said square into lots and sell the same for the erection of buildings thereon for the different purposes of trade and business, to the prejudice and injury of the plaintiff.
The demurrer admits the truth of all these alleged facts.
It will not be .necessary for us to inquire whether the facts alleged establish a dedication of the square in controversy to th& public use generally, that is, to the extent that the fee passed to the public, or that they acquired a right to the unrestricted use thereof. But it will be sufficient to inquire and ascertain what are the rights, if any, of the plaintiffs.
In Tallmadge v. East River Bank, supra, tbe owner of lots on both sides of a city street made a plan exhibiting the street as widened eight feet on each side, and represented to several vendees of different lots, that all the braidings to be erected on the lots he had sold should stand bach eight feet from the line of the street. The vendees erected buildings in conformity with this plan; none of them being restricted by their conveyances or bound by any covenant in respect to the extent or mode of occupation, and it was held that the owner of the land might, by pa/rol contract with the purchasers of successive parcels, in respect to the manner of its improvement and occupation, affect the remaining parcels with an equity, requiring them also to be occupied in conformity to the general plan which would be binding upon the owner, and upon a subsequent purchaser with notice, though his legal title be absolute and unrestricted.
In Ward v. Davis, supra, the court says: “"We do not at all doubt, however singular the anomaly which is thus created in law, that a dedication of lands to a public use, in effect extinguishing forever the title of the owner, may be made by an act in pais ; that the doctrine of prescription is not applicable to the case, so as to require evidence of long user to establish the right, but that a valid dedication may be made by a single act, if positive and unequivocal in its nature, and especially where purchases have been made upon the faith which the act was meant to induce; that to constitute a public use, it is not necessary that the public at la/rge, that is, all persons without distinction, shall be able, or be entitled to share its advantages, but it is sufficient that its advantages are meant to be, and may be shared by the inhabitants, or by a por
In Morrison v. Marquardt, supra, the language of this court, upon the question of parol dedication, is, “ that there may be a dedication to public use without a deed or other written evidence is undoubtedly true. But in such case the intent to dedicate should be clear, and the acts or circumstances relied on to establish such intention unequivocal and convincing.” This language undoubtedly speaks the law on this subject, and it is certainly essential that the facts and circumstances should clearly show an intention to dedicate; but yet, “whatever may be the owner’s real intention, if his conduct is at variance with his purpose, he cannot afterward contest the rights of those who have embarked in projects and formed expectations upon the strength of the appearances he held out to them, which it would be ruinous to disappoint.” Hammond’s Nisi Prius, 194; Per Cowen, J., in Pearsall v. Post, supra.
Now it is averred in the petition that when Scholte changed the designation of the block from “ Public square” to “ Harden square,” which left it in doubt as to its character, he stated and represented that such change of designation was not intended to affect the character of the square, but that the same was intended to remain an open and unoccupied space, and never to be incumbered with buildings or other erections thereon. It is also averred that the plaintiffs and their grantors relied on these representations and purchased lots adjacent to this square, in view of the plan exhibited to them by the owner, and his explanations and representations touching the same. It seems clear to us that, upon the principles of the cases above cited, the purchasers of lots fronting on this square acquired a vested right to have the same remain an open space, unoccupied by buildings, as fully as if the designation on the plat had remained “ Public square,” as at first made and exhibited; and that the owner of the land, and his grantee with notice,
This right or easement acquired by the original purchasers from Scholte became affixed to the lots fronting on the square in the nature of a covenant running with the land and passed to subsequent grantees of the lots without any special assignment or conveyance thereof. "Whoever purchased one of these lots to which the easement was attached became entitled thereto, and whoever became the grantee of the square upon which this easement was a burden, with notice thereof, would take the same burdened with the easement. See Hills v. Miller et al., supra; Trustees of Watertown et al. v. Cowen & Bagg, supra.
In the case last cited the court also held that a grantee of a lot adjoining a public square, who has a special covenant from the original owner of the square, that it shall be kept open for the benefit of his lot and not built upon, may file a bill in equity to restrain the grantor from violating his covenant. We have seen that a parol dedication is
In The Mayor and Council of Macon v. Franklin, 12 Geo. 243, where the facts relied on to enjoin the sale were the declarations of the auctioneer who sold the lots adjacent to a certain block, that, although it was platted into lots, it should not be sold, but should be forever reserved as a common, it was heldihsA, this was a dedication of the block by parol, not as to the public, so that they could enforce the same, but as to the purchasers of adjacent lots who bought with a view to the block remaining a common.
In addition to the cases before cited, see the following as supporting the views herein expressed: Commonwealth v. Rush, 14 Penn. 190; Rivers v. Dudley, 3 Jones (N. C.), 136; Brown v. Manning, 6 Ohio, 298; In matter of Lewis Street, 2 Wend. 472; Livingston v. Mayor, etc., 8 id. ; Olememt v. West Troy, 16 Barb. 251; Washburne on Easements, 186, 187, and cases cited in notes; 2 Smith’s Lead. Oas. 116. '
Reversed.