66 P.2d 96 | Okla. | 1937
This is an action by Fortson Investment Company to cancel a deed covering about 2 1/2 acres of land which it had granted to Oklahoma City on October 22, 1930, or, in the alternative, to recover the market value of the property conveyed. The deed was executed under the following circumstances: Plaintiff was the owner of about 45 acres of unplatted land adjacent to Oklahoma City. Plaintiff wished to plat this tract into lots and blocks and create a new addition called "Meadowbrook Addition," but in order to do so it was necessary to have the plat approved by the regional planning commission as provided in sections 6158 to 6164, O. S. 1931. These sections authorize the city to create a "Regional Planning Commission," whose jurisdiction extends three miles outside the city limits, with the duty to prepare plans for the systematic development of the property within its district. The act provides that all plans and plats for new additions shall be first submitted to the commission for approval before they are entitled to be recorded with the county clerk. The act further provides a penalty for its violation.
Pursuant to this act the Oklahoma City regional planning commission was created and promulgated a rule that in all new additions, in addition to the streets and alleys, 5 per cent. of the gross area must be deeded to the city for public purposes. The rule required a warranty deed to such property, free from incumbrance, dedicating same "for public purposes only." The deed in question covers 5 per cent. of plaintiff's tract, and after its execution, said plat was approved and recorded, and numerous lots sold in the new addition. This action was filed on January 10, 1934. The case was tried to the court without a jury, and judgment rendered for defendant.
Plaintiff brings this appeal on the ground that this was an unconstitutional taking of private property for public use, without payment of just compensation, thus depriving him of his property without due process of law, in violation of section 7, art. 2, Okla. Const. On the other hand, defendant contends that this was not a "taking" by the city, but rather, was a voluntary dedication or grant of the property in question, and sets out eight independent propositions in its brief which, it claims, bars plaintiff's recovery.
The first contention of the defendant is that the deed was a dedication for park purposes, and when lots were sold in the new addition to persons who relied thereon, *474
the law considers it in the nature of an estoppel in pals, precluding plaintiff from revoking such dedication. However, plaintiff insists that the deed is void, and the dedication could not become complete under any theory of estoppel. Plaintiff cites the following authorities holding that the doctrine of estoppel cannot be used to give validity to an otherwise void instrument: 10 Rawle C. L. 108; Colby v. Title Insurance Trust Co. (1911, Cal.)
But in this connection, plaintiff further contends that the city cannot assert estoppel, inasmuch as it only operates in favor of the purchasers of the lots, and none of them are parties to this suit. There is a definite split of authority on this subject. According to the great majority of the jurisdictions, a dedication of land for public use effected by platting and the sale of lots with reference thereto is a completed and irrevocable dedication. The view taken by many courts is that the purchase of lots is in effect an acceptance by the public, and that the purchase of a single lot is sufficient to perfect the dedication. On the other hand, the minority rule is that the sale of lots with reference to the dedication does not make it irrevocable as between the vendor and the public, but is binding only as between the grantor and the purchasers of the lots, who must themselves raise the question. 18 C. J. 119-120; 8 Rawle C. L. 913-914. The cases of City of Norfolk v. Nottingham (Va.) 30 S.E. 445, and Smith v. King County (Wash.) 141 P. 695, relied on by plaintiff, express the view of those two states, which are with the minority group. These cases are so referred to by the text-writers. But Oklahoma follows the majority view. Kee v. Satterfield (1915)
It clearly appears from the record that a great number of the purchasers of lots in this addition were told by plaintiff that the land in question was deeded to the city for park purposes, and the purchasers relied on these representations. There is ample testimony that its proposed location was shown them on a map in plaintiff's office and that this induced them to make their purchases. Since they had actual notice, it is immaterial that the park was not indicated on the recorded plat. The dedication, under these circumstances, has become complete and is irrevocable. City of Cincinnati v. Lessee of White (1832) 6 Pet. (31 U.S.) 431, *475
8 L. Ed. 452; Revard v. Hunt, supra; Hampton v. Oklahoma City (1932)
The nonuser of the land in question, or the fact that no improvements have been made thereon by the city, does not defeat its right to rely on the irrevocability of the dedication. 18 C. J. 73, 89; Hampton v. Oklahoma City, supra.
This disposes of all the contentions made by the plaintiff in error, and it is not necessary to discuss the remaining propositions advanced by the city. The judgment is affirmed.
OSBORN, C. J., BAYLESS, V. C. J., and RILEY, WELCH, PHELPS, CORN, and GIBSON, JJ., concur. BUSBY, J., absent.