13 Del. 78 | Del. | 1888
Lead Opinion
delivered the following opinion :
In 1879, J. Alexander Fulton, the complainant, being the owner of a tract of land adjoining the town of Dover and immediately north and west thereof, caused the same to be surveyed as an
Upon the map, recorded as aforesaid, there is indorsed a note in the following words: “All the streets are sixty feet wide. All the alleys twelve feet, except thé one between State and Bradford streets, which is fifteen feet wide. The streets running east and west run at right angles with State street, New and Queen streets terminate in Mary street, on the north. Kirkwood and West in Cecil street on the north. All the streets west , of the Delaware Railroad terminate in Mary street on the north. The lines appearing on the plot north of Mary street and west of the railroad were never marked on the ground, and were merely experimental and prospective.”
Mr. Fulton, according to this plan delineated on the map, sold lots, amounting somewhere to near 100 in number, to different persons, many of which have been built upon as places of residence or business; chiefly the fortiier. Fulton’s addition has been included within the limits of the town of Dover; the deeds from him to the purchasers of lots all have referred to the recorded plot or map.
By Act of the General Assembly entitled, “ An Act to Incorporate the Town of Dover,” it is provided in the seventh section thereof that “ The town council shall have power, upon the application of ten or more citizens of the town, by petition for the purpose, to locate, lay out, and open or widen any new street or streets, lane or lanes, or alley or alleys, or widen any street heretofore laid out, or hereafter to be laid out in said town, or reopen any old street or streets, lane or lanes, or alley or alleys, now closed, or
By the eighth section of said Act, it is among other things provided that “ Whenever the town council shall have determined to locate and lay out or widen any street, lane or alley, and shall have fixed the compensation therefor, it shall be their duty, immediately after the survey and location of the said street, lane or alley, to notify, in writing, the owner or owners of the real estate through or over which such street, lane or alley may run, of their determination to open and widen the same, and to furnish a general description of the location thereof, and also the amount of the damages or compensation allowed to each; and if such owner be not resident within the said town, to notify the holder or tenant of said real estate; but if there be no holder or tenant resident in said town, the said notice may be affixed to any part of the premises.”
It seems that the petition of Thomas R. Taylor and twenty-six other citizens of the Town of Dover was presented to the town council on the 15th day of December, 1884, requesting the said town council to locate, lay out and open a new street through the land oí the said J. Alexander Fulton, from where Queen street now terminates in Cecil Street, making the same a continuation of said Queen street to Clara street; and that said petition was received, and referred to the committee on streets.
No public action was taken in respect to the opening of Queen street until the 7th day of December, 1885, when the report of the street committee, in relation to the opening of said street, was taken up for consideration, and the following resolves were adopted:
Resolved, That Queen street be opened and extended from
Resolved, That the committee on streets be instructed to have the said street, as extended, surveyed and laved out as one of the public streets of the town; and that the same, when so laid out, is hereby declared to be a public street of the Town of Dover, of the width of sixty feet.”
The report of the street committee was made to the town council on the third day of February, 1885; and no action was taken by the council in respect to it until said 7th day of December, 1885. No notice of the condemnation proceedings by the town council was given to Fulton until the 26th day of March, A. D. 1886, when such notice was given in the following words :
“ Dover, Del., March 25, 1886.
Mr. J. Alexander Fulton:
You are hereby notified that the town council of the Town of Dover, at its regular meeting on the 7th day of December, A. D. 1885, did resolve to open Queen street from Cecil street to Clara street, of the width of sixty feet; and that they have condemned sixty feet front and 1,260 feet deep of land belonging to you. And that the said council has allowed you, as damages, the sum of six cents.
A. S. Kirk, Clerk of Council.”
From these proceedings of the council, Fulton appealed; but, from not having done so in time or from other cause, withdrew it,
Upon the above state of facts, I am of the opinion, first, ‘that there was no necessity of any condemnation proceedings by the town council, of that portion of Queen street lying between Cecil and Mary streets. It had already been dedicated to public use by Mr. Fulton, by the survey and map hereinbefore refeirr'ed to, and by the sale of lots to the different purchasers from him, and conveyance of said lots by him to the purchasers, in which the map, which he caused to be made and recorded with the streets thereon particularly described, is distinctly referred to.
This map, as remarked by the Court in the case of Rowan’s Exrs. v. Portland, 8 B. Mon., 235, (a case very similar in every respects to this), is to be assumed as the representation of the town in which the lots were sold; and not as a merely verbal, but as a written and recorded representation of its localities and divisions, its streets and alleys, so far as they are indicated by it. In all these respects it is to be regarded as having entered into and formed a part of every contract for the sale of a lot in the town, by its number or position in the plan ; and as having been adopted, and confirmed by every conveyance of a lot described by similar reference. It is, in fact, identified with the town itself; and every reference to, or recognition of the town, is a recognition of the plan by which its various divisions and the localities and uses of its different parts are identified. Every purchaser of a lot, according to the plan, acquired an interest in it, not only as evidence of the position of his purchase, but as evidence also of the several advantages and privileges, pertaining to the town and the lots, as indicated by the plan and especially as evidence of the localities, divisions and uses of its various parts as therein presented. In purchasing and paying for his lot, he purchased and paid for as appurtenant to it, every advantage, privilege, and easement which the plan represents as belonging to it as a part, or to its owner as a citizen of the town ; and
The notoriety, actual as well as legal, of the acts involved in the making of Fulton’s addition to Dover; the laying out of the same upon the land; the representation of it upon a map, open to public inspection, and recorded in the office of the Recorder of Deeds; the sale and conveyance of lots according to that plan; the record of the deed referring to the plan ; the subsequent inclosure and improvement of some of them for business or residence; and the existence of the addition to the Town of Dover upon the’ land must be considered as giving to the world such notice of the plan to which all these acts and facts have reference, as to preclude the possibility of afterwards acquiring from the original proprietor, or of asserting, or of claiming, with a good conscience, any right or interest inconsistent with those which, according to the plan of the addition thus made by him to the town, are appurtenant to the lots; and are, therefore, granted to or held for the lot owners or citizens and the local or general public.
The right acquired by a purchase of a lot in this addition to Dover is not confined to the mere use of the ground purchased; but extends to the use of all the streets, alleys and other public rights in the town, according to their appropriate purpose.
These opinions, in respect to the rights of purchasers of property on streets dedicated to public use by the owners of land over which they pass, and of the public therein, are expressed almost in the exact words of Chief Justice Marshall, of Kentucky, in the opinion delivered by him in the case of Rowan’s Exrs. v. Portland. And they have been so expressed because it is difficult to improve upon the language used by him, und because they are eminently applicable to the present case.
In respect to that portion of Mr. Fulton’s land over which it is proposed to extend Queen street to Clara street opposite the new county road, mentioned in the bill, and also in the resolution adopted by the town council, the case would be different. The land over which Queen street is thus proposed to be extended, has never been dedicated by Mr. Fulton to the purchasers of lots from him or to the public. Condemnation proceedings would be necessary under the Act for extending said Queen street over the land between Mary street and Clara street.
The proceedings taken by the town council heretofore for that purpose were not in my opinion sufficient, and were not in accordance with the Act from which they derive their authority.
The eight section of that Act, as we have seen, declares that whenever the town council shall have determined to locate and lay out or widen any street, lane or alley, and shall affix the compensation therefor, it shall be their duty, immediately after the survey and location of the said street, lane or alley, to notify in writing the owner or owners of the real estate, through or over which such street, lane or alley may run, of their determination- to open and widen the same, and to furnish a general description of the location thereof, and also the amount of the damages or compensation allowed to each.
Nowhere in the Act to incorporate the Town of Dover is a plot required to be made. To survey has several significations. It may mean to inspect or take a view of; to view with attention ; to view with a scrutinizing eye; to examine; to examine with reference to condition, situation and value; to measure as land, and many others. Survey as a noun, as in the Act referred to, may mean an attentive or particular view, examination of the land with a design to ascertain the condition, quantity or value. It certainly does not necessarily mean a paper containing a statement of the courses, distances and quantity of land ; and it does not necessarily mean a plot of land made by a surveyor as such. The Act would seem to contemplate that the survey and location of the street contemplated to be extended, laid out or widened, should be made before or at the time the damages were assessed, and not afterwards. And such seems to have been the view of the town council, if we are to judge from the notice which they gave to Mr. Fulton, on the 26th day of March, 1886 ; for in that notice they say: “ You are hereby notified that the town council of the Town of Dover, at its regular meeting on the 7th day of December, 1885, did resolve to open Queen street from Cecil Street to Clara Street, of the width of sixty feet, and that they have condemned sixty feet front and 1,260 feet deep of land belonging to you, and that the said council has allowed to you, as damages, the sum of six cents.”
It is true this is a general description of the land, and all that the Act requires; but it is'not so particular a description of it as «that contained in the resolution adopted by the council on .the 7th
Now, the 26th of March, 1886, was not immediately after the 7th day of December, 1885. And notice given on the former day was not the notice required to be given by the Act of Assembly. The law sedulously protects a man’s freehold. He cannot be deprived of it except in accordance with law. The question is not what was in fact done between the 7th day of December, 1885, and the 26th of March, 1886, but what might have been done.
A man shall not be deprived of the free use of his freehold except in strict accordance with law.
I am therefore of opinion, for this reason, that Queen Street cannot be extended from Mary Street to Clara Street, under the proceedings had and taken by the town council as set forth in the paper in this cause.
I therefore shall decree that the preliminary injunction heretofore awarded in this cause, so far as it relates to Queen Street, between Cecil Street and Mary Street, be dissolved; and that, so far as it relates to the land between Mary Street and Clara Street, it be made perpetual in respect to any proceedings by the town council heretofore taken and had to the same. And it is ordered that the Corporation pay the costs in three months.
Argued on appeal before Comegys, Ch. J., Houston, Grubb and Paynter, J. J.
No man can be a judge and party at the same time; hence, the town council was incompetent to pass upon the question of damages.
London v. Wood, 12 Mod., 687; Anon. 1 Salk., 396; Foxham Tithing, 2 Salk., 607; Brooks v. Rivers, Hardres, 503; Dictionary of Prac. title Judge, 749; 3 Bl. Com., chap. 3, 25; 1 Bl. Com., chap. 7, 268; 1 Jac. Law. Diet., 192; 3 Jac. Law. Diet., 549; 2 Jac. Law. Diet., 175; Mitchell v. Kirtland, 7 Conn., 229 ; Dyer v. Smith, 12 Conn., 391; Powers v. Bears, 12 Wis., 213.
The assessment of damages is a judicial act, involving consideration, discrimination and judgment; and, even had the town council been a competent tribunal to pass upon the question, it was necessary that all the members should be present and act, and the attempt of a less number to assess them as void.
13 Encyclopedia Britannica, 762; Act February 27, 1879, §§ 7, 8,16; Crocker v. Crane, 21 Wend., 211; Rice v. Dannville etc. Turnpike Road Co., 7 Danna, 81; 1 Jac. Law Diet., 194.
The land cannot be taken without compensation. This must be ascertained in a lawful way. There must be a hearing, or opportunity to be heard, before a fair and impartial tribunal. If the Act of February 27, 1879, attempts to authorize a seizure without securing this, it is void.
English Stat. 5 Edw. III., chap. 9; 25 Id., chap. 4; 28 Id., chap. 3, as cited in 4 Jac. Law Diet., 154, 208, 209; 1 Bl. Com., 139; Const. U. S. arts. 5, 14; Const. Del. Preamble, art. 1, § 8; Conclusion, art, 1; Stuart v. Palmer, 74 N. Y., 183; Adams v. Saratoga & W. R. R. Co., 10 N. Y., 333; Curran v. Shattack, 24 Cal., 432; Jordan v. Hyatt, 3 Barb., 275; People v. Tallman, 36 Barb., 222; Mulligan v. Smith, 59 Cal., 206; Com. v. Coombs, 4 Mass., 489; Powers v. Bears, 12 Wis., 214; Kramer v. Cleveland & P. R. R. Co., 5 Ohio St., 140; Vail v. Morris & E. R. R. Co., 1 Zab., 189.
Act February 27, 1879, §§ 7, 8; Bensley v. Mountain L. Water Co. 13 Cal., 306.
The compensation must be adequate and in money. Speculative compensation, as the supposed enhanced value of the adjacent land, is not the compensation meant by the Constitution.
Edward v. Lawrenceberg, etc., R. R. Co. 7 Ind., 711; Bigelow v. W. Wisconsin R. Co., 27 Wis., 478; Carson v. Coleman, 3 Stock., 106; Rice v. Danville etc. Turnpike Road Co. 7 Dana, 81; Louisville & N. R. R. Co. v. Glazebrook; 1 Bush, 325; Sater v. Burlington, 1 Iowa, 386; Carpenter v. Landaff, 42 N. H., 218; Roberts v. Brown Co. Comrs. 21 Kan., 247; Winona etc. R. Go. v. Denman, 10 Minn., 267; Sacramento Valley R. R. Co. v. Moffatt, 6 Cal., 74.
There must be a survey, and the proceedings were void for want of it.
O’Hara v. Pa. R. R. Co. 25 Pa., 445; Rice v. Danville etc. Turnpike Road Co. 7 Dana, 81, 86; Vail v. Morris & E. R. R. Co., 1 Zab., 190.
No legal right was waived by giving notice of dissatisfaction at assessment of damages and notice of appeal.
Cincinnati v. Coombs, 16 Ohio, 181; Unangst’s App. 55 Pa., 128; O’Hara v. Pa. R. R. Co., 25 Pa., 445.
- Every Act of Assembly in derogation of the common law ; and every Act establishing a special tribunal or conferring special power, must be strictly construed.
Watson v. Acquackanonck Water Co., 36 N. J. Law, 195; Harbeck v. Toledo, 11 Ohio St., 219; Mitchell v. Kirtland, 7 Conn.,
The Act of February 27, 1879, chap. 107, Vol. 16, p. 140, so far as it provides for taking private property, is unusual, partiab unjust and oppressive; and the assessment was so grossly unjust as to amount to legal fraud, and should be set aside in equity.
An injunction was the proper remedy.
Leslie v. St. Louis, 47 Mo., 474; Moorhead v. Little Miama R. Co. 17 Ohio, 340; Unangst’s App. 55 Pa., 128; Harness v. Chesapeake etc. R. Co., 1 Md. Ch., 248; Powers v. Bears, 12 Wis., 214; Curran v. Shattuck, 24 Cal., 427.
There was no dedication of any part of Queen Street north of Cecil.
There was no intention to dedicate it. It never was opened or used by anyone but the complainant, and up to the present time remains, as it was in 1877, a part of his pear orchard. At the time of the pretended dedication it was outside the town limits. It never was accepted as a highway. The town by its own proceedings, such as they were, acknowledged that it was private property, and never pretended otherwise until this injunction was granted.
Williams v. N. Y. etc. R. Co., 39 Conn., 509; Hall v. Meriden, 48 Conn., 416; Hayden v. Stone, 112 Mass., 346; Steele v. Sullivan, 70 Ala., 589; Hawley v. Baltimore, 33 Md., 270; Hall v. Baltimore, 56 Md., 187; Peoria v. Johnston, 56 111., 45; Harding v. Hale, 61 Ill., 192; Forbes v. Balenseifer, 74 Ill., 183; Booraem v. N. Hudson Co. R. Co., 12 Stew. Eq., 465; White v. Bradley, 66 Maine, 254; Ranthum v. Halfman, 58 Tex., 551; Ogle v. Phila. etc. R. Co. 3 Houst., 267; State v. Atherton, 16 N. H., 203 ; Bissel v. N. Y. Cent. R. Co. 26 Barb., 630; Witter v. Harvey, 1 McCord, 67; State v. Nudd, 23 N. H., 327; Remington v. Millard, 1 R. I., 93; Cemetery Asso. v. Meninger, 14 Kan., 312.
All the proceedings of the town council, in respect to the opening of Queen Street through the land of complainant, were in conformity with the requirements of sections 7 and 8, chap. 107, Vol. 16, Laws of Delaware, and the notice prescribed by said section 8, to be given in writing to the owner or owners of the real estate, through or over which the street might pass, was given to said complainant in due time.
Re Furman Street, 17 Wend., 649; Re District of Pittsburgh, 2 Watts. & S., 320; Easton v. Walter, 1 Pa. (L. ed. 671, 673); 2 Cent. Rep., 589, 591; Grace v. Newton Bd. of Health, 135 Mass., 490; Baltimore v. Bouldin, 23 Md., 370.
The State, having the right of eminent domain in all the lands of its citizens, may exercise this right through private corporations or individuals, as well as by its more direct agents.
In assessing compensation, the advantage or injury resulting to the owner of the lands from the laying out of the street may be considered. The intrinsic value of the land taken is not the true rule oí damages.
2 Dillon, Mun. Corp., §§ 602, 615, 616; Dunlap v. Mount Sterling, 14 Ill., 251; Curry v. Same, 15 Ill., 320; Dorgan v. Boston, 12 Allen, 223; Balt. v. Bouldin, 23 Md., 328; People v. Smith, 21 N. Y., 598 ; People v. Brooklyn, 4 N. Y., 419; Beckman v. Saratoga & S. R. Co., 3 Paige, 45; Alexander v. Balt., 5 Gill., 383; Livingston v. Mayor of N. Y. 8 Wend., 101; Indianapolis Water Works Co v. Burkhardt, 41 Ind., 364; Whiteman v. Wilmington & S. R. Co., 2 Harr. (Del.), 514.
The authority conferred upon the town council to lay out streets, and the proceedings had under the Act of the Legislature, is “ due process of law.” The legislative Act is itself due process of law.
People v. Smith, 21 N. Y., 595; Murray v. Hoboken Land Improvment Co. 59 U. S., 18 How., 272 (15 L. ed.), 372; Bank of
A majority of the town council is all that is required to constitute a quorum for the transaction of any business.
Chap. 107, Vol. 16, Laws of Delaware, § 16; Cupp v. Seneca Co., 19 Ohio St., 173.
A court of equity will not interfere where there is an adequate remedy at law, or where the party did not seek to vindicate his rights in the proper place aud in due time.
Stevens v. Beekman, 1 Johns Ch., 318; Jerome v. Boss, 7 Johns Ch., 315; People v. Brooklyn, 4 N. Y., 442; Bank of Columbia v. Okely, 17 U. S., 4 Wheat., 242 (4 L. ed., 559); Gott v. Carr, 6 Gill & J., 311; Stuart v. Baltimore, 7 Md., 514; Methodist Church v. Balt., 6 Gill., 391; LeRoy v. Mayor etc. of N. Y., 4 Johns., Ch., 352.
Where the owner of a tract of land has laid the same out in lots, and has made a map or plot thereof and recorded the same; and has also made sales of the lots to various purchasers with reference in the deeds of conveyance to said map or plot, the said conveyances, taken in connection with the map or plot to which they refer, operate as a conclusive grant or covenant, securing to the purchasers and to the town all the advantages, privileges and easements to the lots of said town; and the town has a right at any time to open said streets without condemnation proceedings.
Cincinnati v. White and Barclay v. Howell, 31 U. S., 6 Pet., 431, 504 (8 L. ed. 452, 479); Balt. v. Bouldin, 23 Md., 372; White v. Flannigan, 1 Md., 525; Livingston v. N. Y., 8 Wend., 85; Watertown v. Cowen, 4 Paige, 510 ; Rowan v. Portland, 8 B. Mon., 232; Methodist Episcopal Church Trustees v. Mayor etc. of Hoboken, 4 Vroom, 13.
“The questions to be determined by this Court are presented by two appeals from the decision of the Court of Chancery rendered upon the same bill and answer. One appeal is by the defendants below from said decree so far as it perpetually enjoins the defendants from extending and opening Queen street, in the Town of Dover, through the lands of the complainant, from Mary street to Clara street. The other appeal is by the complainant below from said decree so far as it dissolves the preliminary injunction enjoining the defendants from extending and opening said Queen street, through said complainant’s lands, from Cecil street to" Mary street.
The facts disclosed by the record are substantially as follows: J. Alexander Fulton, the complainant below, was the owner of 50 acres, more or less, of land adjoining Dover, in Kent county, Delaware, bounded on the north by Clara street, on the south by Cecil street, on the east by Governor’s avenue and an alley, and on the west by the Delaware Railroad. Said tract was used by him as a fruit and vegetable farm, and for raising nursery stock; and the
By an act entitled “An act to re-incorporate the Town of Dover,” passed February 27, 1879, said tract of land was included within the corporate limits of said town. Section 7 of said act empowers the town council of Dover, upon the petition of the prescribed number of citizens, to locate, lay out, and open and widen streets, lanes, alleys, etc., in said town, and to allow and pay the owner [of lands taken such compensation as they shall deem just and reasonable under the circumstances. Section 8 of the act requires that notice thereof shall be given to the owner by said council, within a prescribed time, and provides for an appeal by any dissatisfied owner to a commission of five freeholders, whose determination shall be final and conclusive, said commission to be appointed by the resident judge of the county. Under and by virtue of these provisions, proceedings were taken for the purpose of extending and opening Queen street through complainant’s said land from Cecil street to Clara street, thereby crossing Mary street, (an unopened street at this point,) lying between and parallel with said street. On December 15, 1884, a petition, signed by the required number of citizens, was presented to the town council, asking for the said extension of Queen street, and was thereupon read and referred to the committee on streets. The complainant was im
On March 25, 1886, William A. Atkinson, a surveyor, surveyed and located said extension of Queen street by direction of the street committee, and the same day made his report thereof to said committee and the president of council. On March 26, 1886, notice was given to complainant of council’s determination to open
The defendants below claim that the preliminary injunction should have been dissolved by the chancellor so far as it related to the lands of the complainant lying between Mary Street and Clara Street, as it was, in so far as it related to his lands lying between Cecil Street and said Mary Street. They claim this because they contend that the general assembly, by the said act of February 27, 1879, reincorporating the town of Dover, lawfully delegated to the said defendants the power to make and open the said extension of Queen Street conformably to the provisions and requirements of said act; and that all their acts and proceedings in the premises are well and lawfully done in strict conformity therewith. On the contrary, the said Fulton, complainant below claims that the Chancellor should have made the said injunction perpetual as to the whole of said proposed extension, as well between Cecil and Mary Streets as between Mary and Clara Streets. Said complainant rests his claim upon two general grounds First. That so much of said act of 1879 as authorizes the town council to assess such compensation as they shall decree just and reasonable for any lands taken for the opening or widening of streets, etc., in the town of Dover, creates a tribunal which is not a disinterested and impartial one, and therefore is inhibited by section 8 of article 1 of our State constitution, and also by section 1 of the fourteenth amendment to the federal constitution. Second. That all the acts and proceedings of the said
This court must therefore determine—Mrst, whether this particular provision of the act is a lawful delegation and exercise of the power of eminent domain ; and, second, whether the proceedings of the said defendants have been in due conformity with the provisions and requirements of said act delegating to them said power. The right of eminent domain is inherent in the government; it is not conferred, but limited, by the constitution. Subordinate to such constitutional restriction as may be imposed upon its exercise, all property is held and all contracts are made subject to this right. The legislature, instead of directly exercising the power to take private property for public use, may delegate it (subject always to existing constitutional restrictions) to municipal corporations, or other public agencies, and it may also confer upon them the right to decide upon the existence of the necessity for its exercise. This power, with all constitutional and statutory limitations and directions for its exercise, must be strictly pursued, and courts will, within reasonable limits, strictly construe this power, require a strict compliance with all conditions precedent to the exercise of it, and all provisions as to the manner of its exercise, intended for the benefit and protection of the citizen. It is not now necessary to cite authorities in support of these well-settled principles, but only to apply them in the determination of the questions raised at the argument.
In support of his contention that the town council is not an impartial, and consequently not a lawful, tribunal for the assessment of his damages, and that therefor no constitutional compensation has been allowed him, the complainant refers to the following clause of section 1 of the fourteenth amendment to the federal constitution: “Nor shall any State deprive any person of life, liberty, or property without due process of law;” and also to the following clause of section 8 of article 1 of our Staté constitution:
The conclusion therefore seems to be warranted, both by reason and authority, that the town council of Dover were lawfully and constitutionally authorized to make a preliminary or primary and somewhat summary assessment of the compensation due to the complainant for his lands required for the said extention ■ of Queen Street, and that the complainant would be bound by this assessment if he failed to prosecute his appeal, provided all the proceedings of the town council were in due conformity with the provisions of the act of 1879. The fact appears of record, and is undeniable, that he refused or neglected to prosecute said appeal within the prescribed period. He must therefore be presumed to have waived or abandoned his right to secure an opportunity to be heard before, and to have his damages determined and awarded by an impartial and lawful tribunal of review. He has been tendered the compensation allowed him by the town council and has declined to receive it. He must therefore acquiesce in the occupation and use of
The record discloses, and accordingly it is objected, that a majority only, and not all, of the town council were present when the determination to extend Queen street, and the assessment of the complainant’s compensation, were made, and when the street committee were instructed to have the said street, as extended, surveyed and laid out as one of the public streets of the town; but these acts, doings, and determinations of this majority under the proper construction of section 16 of said act were as good and binding as if the whole council had participated therein. Cupp v. Commissioners, ' 19 Ohio St., 173. It is further objected that the smallness of the compensation would seem to indicate that the town council estimated and deducted special benefits to complainant’s adjacent lands. This, however, would not be a valid objection to their proceedings, for such a course would be warranted by the terms of section 7 of said act, and by judicial authority. Whiteman’s Ex’rs v. Railroad Co., 2 Har. (Del.), 524. Another ground of objection to the validity of the said proceedings is that the notice required to be given to the complainant by section 8 of the act, in order to enable him to take and prosecute his appeal, was not duly given by the defendants. It is urged that the town council, on December 7, 1885, determined to extend and open Queen street, instructed its street committee to have the said street, as extended, surveyed and laid out, and fixed the compensation of the complainant, but that said council did not give the latter the prescribed notice thereof until March 26,1886, and that therefore the said proceedings are invalid, and the complainant is not bound thereby. The force of this objection depends upon the determination whether the prescribed “ survey and location ” mentioned in the phrase “ immediately after the survey and location of the said street,” in section 8 of the act, are to be construed as required by said act to be made, and also as having been made, in the present case, on or prior to the said seventh of December, 1885, or not until the twenty-fifth of March, 1886.
The pivotal part of said act—because upon it depends the validity of the proceedings—is the provision for the appeal from the primary and somewhat summary (as the legislature have manifestly regarded it) determination and allowance of compensation by the council. While the view and estimation of the lands by the town council, in their summaiy proceedings, might be informal and general in their character, yet it would be especially important that the tribunal of review and final determination should be furnished with a more definite location of the lands to be viewed and assessed by them. Therefore the prescribed survey and location, which. would not be necessary for the information and primary action of the council, would be essentially so for the final determination of the commission of review. And a careful consideration of the act it
In section 7 of the act, which authorizes the town council to lay out and open streets, etc., and to fix the compensation, etc., therefor, there is nothing specifying that they shall, before fixing said compensation, and determining to lay out and open any street, etc,, make or cause to be made any “ survey and location ” of such street, etc.; nor is there any provision elsewhere in said act prescribing any such condition precedent thereto. The only provision prescribing any survey and location of such street, etc., is to be found in section 8 of the act. This is the provision which authorizes an appeal from and a review of the assessment of damages by the town council. The prescribed survey and location, therefore, relate solely to the appeal proceedings provided by section 8, and no
The season from December 7, 1885, to March 26, 1886, was unfavorable to the use of the land in question, either for the purposes of the complainant or defendants. It does not appear that the complainant had planted or built upon it, or done anything to increase its value or change the condition under which it stood in
The foregoing view of the law applicable to this case disposes of the questions presented by the record. It remains to be considered, however, whether or not the land between Cecil- and Mary Streets, within the proposed extension of Queen Street, had already become a public street of the town of Dover, by dedication, when the said condemnation proceedings were instituted by the defendants. Whether the complainant had or not intended to dedicate the same to public use, it is clear that there is no evidence of record to show that any such dedication thereof had then been accepted either by the public or by the town authorities of Dover. There is record evidence that said land was then covered by pear trees, etc., and used exclusively by-the complainant for his fruit and nursery purposes; but there is no evidence, either that the public had actually used the said land as a highway, or that the complainant had sold any land, whatever on Queen Street, either between Cecil and Mary, or between Mary and Clara Streets. On the other hand, the condemnation proceedings of the council against all the land required for the proposed extension, as well between Cecil and Mary as between Mary and Clara Streets, of themselves furnish affirmative evidence of record, which is nowhere rebutted, that absolutely negatives any acceptance by the town authorities of the alleged dedication of the same or any part thereof. In view of these facts, it must be held that there was no such use by the public, or acceptance by the town of Dover, as made the alleged dedication complete in legal contemplation. Ogle v. Railroad Co. 3 Houst. 273, 277
It appearing, therefore, upon due consideration of the law and facts of this case, that said condemnation proceedings were lawfully authorized by said act of 1879, and also that said proceedings were instituted and conducted by the defendants, in all respect, in due conformity with the provisions of said act, it is manifest that the court below should have dissolved its preliminary injunction as to the whole of the proposed extension of said Queen Street, and that the decree of this court should be entered in accordance with this view.
Dissenting Opinion
dissenting:'
The principal question in this case, seems to be, whether the plaintiff below dedicated, to the use of the public, a portion of his land, called “ Fulton’s Addition to Dover,” which would be enclosed between parallel lines sixty feet apart, beginning at the northern edge of Cecil Street, and running in continuation by right line with Queen Street, of said town, to Clara Street, or even Mary Street, shown on the map attached to the brief, by him delivered in this court. He was the legal owner in fee of all the land enclosed by the outlines of the “ Addition;” and, like every other tenant in fee, could dedicate any part, or the whole, of his land, to public use. The respondents contend that the survey by the complainant of the “Addition ” and making a plot of it and recording that plot in the Recorder’s Office, with the descriptive notes upon it referring to defined or contetaplated streets, and the sale of some of the lots contained within the plan, of themselves constitute a dedication of the streets mentioned or referred to, as and for public streets or highways, of the aforesaid town, for the benefit of said town, or its inhabitants. The contention of the respondent is the contrary, or involves a contrary consideration. If there was dedication by the complainant of the part marked on his map aforesaid attached to his brief, as “ Proposed Extension of Queen,” then he had no case
I think it may be safely laid down as law—that, in cases of dedication, to the public generally of a highway, for example, or to a municipal body, of a street, there must, to make the dedication complete, be some act of acceptance on the part of the intended donee of the grant. In the case of public highways, where no positive formal act of dedication is shown, but public user is relied on, it must not only appear that such user has been uninterrupted and continuous for at least twenty years, but that the public authorities have treated the way as a public one, by expending money in repairing it, or by some other unequivocal act indicative of treating it as a public road. While the fact that certain individuals, finding it to their convenience to do so, have used the way for such a period, would be evidence of a grant by the owner of the fee, of an easement of way, and therefore subject him to an action for hindering them in their use of it. Yet no public right grows out of like user—that is dedication of the way to public use until there has
The first section oí Chap. 60 of the Revised Code, defines public highways as follows: “ All public roads, causeways and bridges, heretofore laid out as such, or made by lawful authority, or which have been used as such and maintained at the public charge for twenty years, are declared to be common highways.” In the case of Johnson v. Stayton, 5 Harr., 448, tried in Sussex at the October term, 1854. Judge Harrington in delivering the charge to the jury, said among other things—“The legislature has qualified the common law iq this State respecting roads claimed to be such by dedication. So many neighborhood roads exist by the indulgence of land owners, that the common law was considered harsh in reference to forfeiting private land by indulgence, and the legislature has required that such a road shall have not only been used, but maintained and kept up by the public for twenty years, to make it a public road against the owner of the land,” page 450. This settles, by a decision what is the evidence of dedication from public user; and it follows, that unless there be such user as the statute prescribes, and the charge recognizes as the law, there can be no in
The case of Rowan’s Exrs. v. The Town of Portland, 8 B. Mon., 232, upon which that part of the decree of the Chancellor against the complainant below is chiefly based, is a different one in its facts from that before him—it being a case where an owner had founded and laid out a whole town, had made and recorded a map of it, with his declaration upon it, that all sales were to be regulated by the map. In such case there would seem to be no room for doubt, that all streets shown on such map should be treated as highways of such town for public use—the very consideration, it might—with perfect justice be assumed, which prompted buyers to invest their money, being that they were to be part of the body politic of a town, shown on the map. What the Kentucky Court would have said, in the case before it, if there had been on the statute book of that State, such a feature with respect to dedication as has been pointed out as being upon the pages of our Code, I can only conjecture. The rights of buyers of lots upon a plot, and those of the public, with reference to streets or highways, are by no means the same; for they do not rest upon the same support.
I am of opinion, upon the above view of the case, that the decree of the Chancellor dissolving the injunction granted by him as to that part of Queen street as projected between Cecil and Mary streets should be reversed; and that the injunction as it respects the whole of said street should be made perpetual; and that the respondent below pay the costs in three months.