Missouri Institute for the Education of the Blind v. How

| Mo. | Mar 15, 1858

Scott, Judge,

delivered the opinion of the court.

The defendants have failed to establish any justification for the trespass with which they are charged. Their defence rested on the ground that there had been a dedication of the land to the public as a street.

The vital principle of a dedication is the intention to dedicate ; and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made. (Angell on Highways, 113.) When the proprietor of town property lays it out into lots, with streets and alleys intersecting it, and sells lots with reference to the plat in which the same is so laid off, he thereby dedicates the streets and alleys to the public. There is some contrariety of opinion as to the length of time the owner must acquiesce in the use of his property by the public before it can be said that he has made a dedication of it. In relation to this matter Chancellor Kent says, “ If there be no other evidence of a grant or dedication than the presumption arising from the fact of acquiescence on the part of the owner in the free use and enjoyment of the way as a public rbad, the period of twenty years, applicable to incorporeal rights, would be required as being the usual and analogous period of limitation. But if there were clear, unequivocal and decisive acts of the owner, amounting to an explicit manifestation of his will to make a permanent abandonment and dedication of the land, those would be sufficient to establish the dedication within any intermediate period, and without any deed or other writing.” (3 Kent Comm. 451.) Angell, on the same subject, says, “ In a recent American case, it was held that, without some clear and unequivocal manifestation of an intention to dedicate, dedication would not be presumed until after the lapse of twenty years; and this seems to be the view more generally taken by the American courts.” (Angell on Highways, 116.)

The lot in controversy, it seems, was not made a part of the city until some time in 1856. It is not pretended that Ruland was a founder of cities, dedicating streets, alleys and public places with a view of enhancing the value of the rest of his property or to induce purchasers to buy. He owned but a single lot, measuring 218 feet on two streets, and of the depth of the block separating them. He had just purchased it. The land on his west was vacant and unenclosed. He had no need of an outlet. Such being the circumstances, more direct and positive evidence of facts manifesting an intention to dedicate are necessary. Strong evidence should be required to raise a presumption that the owner of a lot just purchased would abandon to the public more than one-ninth of it, when at the time there was no necessity for, nor policy in, such act. It would have been time to make the dedication when the relative situation of his lot required such an act for his own convenience. Ru-land may have pointed out Nineteenth alias Twentieth street to Moulton. But, while doing this, he was claiming that the eastern boundary of his lot should be so projected, and it was in fact so projected, as to leave uncovered by his claim the ground now in controversy. A presumption is not easily indulged that a proprietor has abandoned that of which he is not aware that he is the owner. The idea of a dedication by Ruland is inconsistent with the testimony of Cozzens, a witness introduced by the defendant himself. The witness says Ruland always claimed 218 feet, the quantity he purchased. He told Ruland his eastern fence was not properly located. Ruland insisted that it was, and asserted that if he lost the ground on the east he would have his quantity on the west. Buland, while claiming on the east, could with no propriety assert any right to any unfenced land on the west; for the quantity to which ho was entitled being definite, such a presumption would have weakened, if not destroyed, his claim on the east. If a proprietor is mistaken as to the location of his lot, and leaves a portion of it unenclosed, supposing that it is not covered by his claim, and afterwards ascertains his error, it would be hard in such a case to presume a dedication. In the case of Barraclough v. Johnson, 8 Ad. & Ellis, 99, Lord Denman said, “A dedication must be made with an intention to dedicate. The mere acting so as to lead persons into the supposition that the way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction.”

There is nothing in the record that warrants the supposition, nor is such a view of the case presented by any of the instructions, that Buland really intended to give a street on the west, and only claimed on the east in the hope of obtaining an indemnity for what he had determined to relinquish for his own convenience on the west.

If we take the entire description of the lot as contained in the several deeds under which the plaintiff claims, we will find that it furnishes no evidence in support of the pretensions of the defendant. On the contrary, it shows that there was no intention on the part of the several grantors in those deeds to relinquish any part of the lot. The circumstances relied on to show an intent to dedicate is the call for a street on the west in the deeds. But that call does not show that it was the intention that the street should be opened by lay ing it out on a portion of the lot. The contrary is clearly manifest. All the deeds refer to a plan on record. That plan shows that Euland’s lot fronted 218 feet on Morgan street, and the same number on Franklin avenue. The space between these streets was divided by an alley, thus forming two lots, one fronting on Morgan street and the other on Franklin avenue. These two lots, having a front each of two hundred and eighteen feet, were severally subdivided into seven smaller lots — one with a front of 32 feet, and the rest with 31 feet each — making the aggregate 218 feet. By laying- out the street on the lot, two of these smaller lots would be reduced into narrow slips not exceeding five or six feet in front. But it appears from the evidence that at the date of the deeds referred to, (for they were made after the death of Ruland,) there was a street west of the ground and adjoining it. This street was laid out by the commissioners appointed to make partition among the heirs of ¥m. Christy, to whom the unenclosed land on the west belonged. The street laid out according to the plat was only 30 feet, but still it was sufficient to answer the call.

According to the principles stated in this opinion as derived from able commentators on our laws, it will' not be necessary for us to determine whether acquiescence is a negative or affirmative act. The time relied on as raising a presumption of dedication from user is far short of twenty years, and there is no other circumstance in the case from which it would be warrantable to declare that there was a dedication within that period. There was no error in the first instruction given for the plaintiff, and there could have been but little cause of complaint had the law been as the defendant supposed when the instructions given on his behalf are considered in connexion with it. Notwithstanding the case of Regina v. Petrie, 30 Eng. Law & Eq. R. 217, Angelí states the American law to be as it has been assumed in this opinion.

In the refusal to give the rejected instructions asked by the defendant, there is no error. The judgment is affirmed;

the other judges concur.