111 Ark. 545 | Ark. | 1914
(after stating the facts). 1. The allegations of the complaint show that the appellant, after purchasing the lands described in the complaint, platted that portion of the lands, in controversy as an addition to the town of Corning. One of the blocks in the addition was designated as block No. 5000, and the streets and alleys were dedicated to the town as long as they were used as such; that appellee purchased the block numbered 5000 after same had been platted and the streets and alleys had been dedicated to the use of the town.
The allegations of the complaint were sufficient to show that appellant platted the land as blocks of an addition to the town of Corning, with streets on each side of the blocks, and an alley running through the same.
In Frauenthal v. Slaten, 91 Ark. 350, we held: ' “An owner of land who files a plat thereof showing blocks, lots and squares and sells lots with reference to such plat is held to have dedicated such streets, alleys and squares irrevocably.” See, also, Davies v. Epstein, 77 Ark. 221.
The allegation that “the defendant bought said block 5000 from parties to whom this plaintiff had sold” was sufficient to show that the appellee and his grantors had purchased the block with reference to the plat. The allegations show that appellee was the owner of the fee in at least one-half of the streets surrounding the block, and of the alley which traversed the same, subject only to the rights of the public to use the same as'a highway. See Dickinson v. Arkansas City Improvement Co., 77 Ark. 570. And, if these were abandoned, as alleged, appellee became the absolute owner thereof.
There was no allegation in the complaint that appellant reserved the right on his plat or hy any declaration made by him to take possession of the streets and alleys in the event the public abandoned the use thereof. Although the complaint alleged that the platted streets and alleys had never been accepted by the town of Corning, this could not affect the title of one who had purchased with reference to such streets and alleys.
The allegations were not sufficient to show that appellant only made a qualified dedication to the town, and that title reverted to him in the event that the town abandoned the use of the streets and alleys. Under the allegations of the complaint the appellant had no right that he could assert as an individual to the alley and streets as against the appellee. The abandonment of the alley and streets by the public would not give the appellant the right to recover from the appellee the whole of the streets and alley for which he sues. The complaint alleged that the appellee was in the unlawful and wrongful possession of the alley and streets. This would not give the appellant the right to recover from the appellee such alley and streets. The enclosure of the alley and streets by the appellee might give the town of Corning the right to enjoin him from maintaining such enclosure or to prosecute him for a public nuisance; or, if appellant suffered an injury which was peculiar to him, he might maintain an injunction to prevent the nuisance. See Texarkana v. Leach, 66 Ark. 40; Wellbourn v. Davies, 40 Ark. 83; Packet Co. v. Sorrels, 50 Ark. 466; Ruffner v. Phelps, 65 Ark. 410. But the complaint does not state facts sufficient to give appellant that character of relief.
2. The court did not err in refusing the appellant permission to amend his complaint. The judgment recites that he asked “leave to amend his complaint so that he might state a perfect cause of action by making the incorporated town of Corning a party plaintiff.” This was beyond the power of appellant to do, and would riot constitute a proper amendment to his complaint.
The judgment of the circuit court is therefore correct, and it is affirmed.
