120 Mich. 185 | Mich. | 1899
The plaintiffs are some of the heirs at law of Johnson Patrick, and the action is ejectment, brought to recover the undivided 15-32 of the N. W. i of Church Square, in the city of Kalamazoo (formerly known as the “Town of Bronson”), from its present occupant, the Young Men’s Christian Association. This property is situate upon the W. of the S. W. £ of section 15, which was located and paid for at the federal land office on November 1, 1830, by Stephen H. Richardson, and on
“The Church Square is sixteen rods square, and is appropriated to the four first religious denominations who may form societies in the foregoing town, and erect buildings thereon; one-fourth to the benefit of each society. ”
This plat was not signed by Richardson or Bronson, but was acknowledged by both.
On January 5, 1833, Richardson gave a warranty deed of the W.- £ of the S. W. £ of section 15 to 'Sally Bronson, excepting from the conveyance “the streets and squares of the village of Bronson.” On May 4, 1836, Titus Bronson and Sally Bronson, his wife, conveyed to John Berdan, by. warranty deed, the W. £ of S. W. £ of section 15, with certain exceptions. Counsel for the plaintiffs contend that Church Square was excepted; counsel for the defendant, that it was not. We are of the opinion that it was excepted, but defer a further statement of the contents of the deed until we reach the question in its proper order, if it' shall be thought necessary discuss it. On October 24, 1836, Berdan and wife gave to Sheldon and Burdick a warranty deed of the same land, making the same exceptions.
On March 8, 1838, Richardson and wife gave a quitclaim deed to Johnson.Patrick of the west half aforesaid, without any exception of streets or squares; and on April 2, 1838, Johnson Patrick and wife quitclaimed the same, without exceptions, to Dan Arnold. On January 3, 1839, Dan Arnold quitclaimed to Sheldon and Burdick “all that part of the west half [ aforesaid ] conveyed by Titus Bronson and wife to John Berdan by deed.of May 4, 1836,” and on the same day, viz., January 3, 1839, Arnold quit-
Passing the question for the present, and resuming the statement of fact, we find a number of other deeds, which do not affect the case, except as they aid in bringing outstanding claims of title into the defendant. Among them are conveyances from othef heirs of Johnson Patrick. - In 1837, St. Luke’s Protestant Episcopal Society was formed, and erected a church building on the premises, and occupied the lot until March 18, 1887, when it deeded the property by quitclaim deed to Senator Stockbridge, receiving from him therefor the sum of $6,500. He bought it for the purpose of donating it to the Young Men’s Christian Association with a view to the erection of an expensive building thereon, and -soon after deeded it to that society, to apply upon his subscription of $10,000 for that object. The building was thereupon erected at a cost approximating $25,000, and. it has since been occupied and used for the ordinary purposes of such society.
“ Sec. 2. That such maps or plats as are required by this act to be recorded shall particularly set forth and describe all the public grounds within such town, by its boundaries, courses, and extent, and whether it be intended for streets, alleys, commons, or other public uses, and all the lots intended for sale, by progressive numbers, and their precise length and width; and the maps, made and acknowledged before a justice of the peace, a justice of the county court of the proper town where the town lies, or before a judge of the Supreme Court, and certified under the hand and seal of the judge or justice taking such acknowledgment, and recorded, shall be deemed a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended to be for public uses, in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.”
Counsel for the plaintiffs contend that a statutory dedication was not effected, for want of a strict compliance with the statute; but we will pass this point.
In its early days the common law recognized dedication of land for highway purposes without grant or covenant, but it is doubtful if the rule went further. A discussion of this subject will be found in the opinion of the late
‘ ‘ Land may be dedicated to pious and charitable purposes, as well as for public ways, commons, and other easements in the nature of ways, so as to conclude the owner who makes the dedication. This is the general doctrine. Pearsall v. Post, 20 Wend. 111, 22 Wend. 425. Public highways, and sites for court-houses, churches, and other public buildings, are familiar instances of the application of the principle. It has been applied to the reservation of a spring of water for public use (McConnell v. Town of Lexington, 12 Wheat. 582; and see City of Cincinnati v. White’s Lessee, 6 Pet. 438; also 20 Wend. 120, 22 Wend. 452); to a public square in a village ( Trustees of Watertown v. Cowen, 4 Paige, 510 [27 Am. Dec. 80]); and to a public burying ground (Beatty v. Kurtz, 2 Pet. 566. See, also, 6 Pet. 431; 22 Wend. 454, 455, 473; Stater v. Trask, 6 Vt. 355 [27 Am. Dec. 554]).”
In the case of Benn v. Hatcher, 81 Va. 25 (59 Am. Rep. 645), it was held that a dedication of land for a cemetery was valid, and it was said that:
*191 “In its technical legal sense, dedication is the appropriation of land for a public use, — as for a highway, a common, or the like, — but may be effectual, it seems, when made to a pious or charitable use, though not distinctively a public one.”
The statute in question provides in express terms that the plat shall have the effect to convey the fee of land dedicated to public uses to the county. A plat conforming to. the statute, then, operates as a conveyance of a fee, though probably it is a base fee. This was an innovation, for under the common-law rule the owner held the fee in trust to the use of the public; but some of the difficulties resulting from this innovation are elucidated by the opinion in the Michigan case last cited, indicating sufficient reasons for a statute which should give to a formal offer of dedication of public ground by a plat the effect of a conveyance by way of grant to uses, and providing a grantee.
A more important question, however, is whether the statute was designed to apply to any dedication other than those made for general public purposes, and whether it is broad enough to permit the plat to be made a medium for the conveyance of land for all kinds of charities or pious uses. In this country we have no established church, and religious uses are in the hands of corporations or voluntary associations. The same is true, with a few exceptions, of charities, such as colleges, hospitals, etc.; and, while dedications may be made to these, there is no apparent reason for requiring the owner to part with the fee, especially as it is after all only a conveyance to uses, and, if the fee were conveyed, it would be but a base fee, determinable on the happening of a collateral event. Again, by the language of the act this provision applies only to “public ground.” Public ground, in the ordinary sense, is ground in which the general public has a common use; and it would not accord with the common understanding of the language used to say that land devoted to the use of a local religious society, or hospital, or academy,
Common-law dedications do not ordinarily convey the fee. In fact, under the strict rule they never do. See cases cited 9 Am. & Eng. Enc. Law (2d Ed.), 73, note 2; Baker v. Johnston, supra. And though it has been said that “there may be a dedication which is essentially a grant, in which the fee passes,” the cases cited in support of the proposition seem to depend upon formal conveyances or statutes. 9 Am. & Eng. Enc. Law (2d Ed.), 74. Thus, in Van Ness v. City of Washington, 4 Pet. 232, the question was whether the federal government acquired title in fee to the land occupied by streets and public squares in the city of Washington, and the case turned upon the construction to be given to a grant contained in a deed to the government. The case of Hoadley v. City & County of San Francisco, 50 Cal. 265, arose upon a statute, and the same is true in U. S. v. Illinois Cent. R. Co., 2 Biss. 174, Village of Grandville v. Jenison, 84 Mich. 54, and a large number of other cases; and even in such cases it has been held that a base fee only is conveyed, which is determinable on the happening of a given collateral event. 9 Am. & Eng. Enc. Law (2d Ed.), 74. In the case of Hunter v. Trustees of Sandy Hill, supra, it is said:
*193 “ ‘Dedication,’ as the term is used in reference to this subject, is the act of devoting or giving property for some proper object, and in such manner as to conclude the owner. The law which governs such cases is anomalous. Under it, rights are parted with and acquired in modes and by means unusual and peculiar. Ordinarily, some conveyance or written.instrument is required to transmit a right to real property; but the law applicable to dedications is different. A dedication may be made without writing, — by act in pais, as well as by deed. It is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, and not the permanent estate. Its effect is not to deprive a party of title to his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. City of Cincinnati v. White’s Lessee, 6 Pet. 431, 438. The principle upon which the estoppel rests is that it would be dishonest, immoral, or indecent, and in some instances even sacrilegious, to reclaim at pleasure property which has been solemnly devoted to the use of the public, or in furtherance of some charitable or pious object. The law therefore will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed. The principle is one .of sound morals and of most obvious equity, and is in the strictest sense a part of the law of the land. It is known in all courts, and may as well be enforced at law as in equity. , This being a case to which the law of dedication applies, the use for which the dedication was made must determine the extent of the right parted with by the owner of the land and acquired by the public. 6 Pet. 438. Where, as in the case of a highway, the public acquire but a mere right of passage, the owner who makes the dedication retains a right to use the land in any way compatible with the full enjoyment of the public easement.”
In that case land used for a cemetery was in dispute. The public having laid a road through it, the original owner claimed a forfeiture. In conclusion the court said:
“When the street was opened, a part of the dead, and a part only, had been exhumed, and removed to the new burial ground, and the residue of the bodies still remain.*194 Before the suit was instituted, this part of the old graveyard was inclosed, and placed in its former condition; the whole constituting, as it formerly did, but one burial place. We think the judge ruled correctly that the plaintiff had no right to the possession, and the nonsuit was therefore proper. What right, if any, may hereafter arise in favor of those who can make title from the original owners, it is not necessary now to inquire. The land is still a public graveyard, inclosed, known, and recognized as such. When these graves shall have worn away, when they who now weep over them shall have found kindred resting places for themselves, when nothing shall remain to distinguish this spot from the common earth around, and it shall be wholly unknown as a graveyard, it may be that some one who can establish a good ‘ paper title’ will have a right to its possession, for it will then have lost its identity as a burial ground, and with that all right founded on the dedication must necessarily become extinct.”
No fee having passed through the dedication, we must examine the deeds subsequently made by Richardson. His first deed was a warranty deed to Sally Bronson of the west half of the quarter section, in which he excepted the streets of the village of Bronson. What was meant by the expression, “with the exception of streets and squares in the village of Bronson?” No allusion is made in the deed to any plat, but we cannot conceive of any other method of interpreting the deed than by a reference to the plat, whether we treat it as a valid plat, or a mere private plat made by the grantor for the purpose of facilitating sales of land. There is nothing in the case, except the plat, to afford any light upon the subject. An examination of the plat shows the village laid out into blocks, some of which are squares and some parallelograms. Some of each are subdivided into lots, others are not. Of the squares, some are marked as squares, thus: “Church Square,” “Jail Square,” “Public Square or Court-House Square,” and ‘Academy Square,” “Burial Ground,” “School Lot;” the last two, however, not being squares. We think a reasonable construction
We will next examine the deed to Berdan, for only by the construction of that deed can we determine whether the squares were included in the deed from Arnold to Burdick and Sheldon. The description was as follows:
“The undivided one-half of the west half of the southwest quarter, also the west half of the southwest quarter, of section number 15, in township number 2 south, and range 11 west, Kalamazoo, Mich., excepting and reserving from sale in the last-mentioned lot the following village lots and parcels of land, namely: One parcel of land, about 11 rods wide, extending from Water street north to east and west quarter section line of said section 15. Also one other parcel of land extending from Main street north to said quarter section line, being 8 rods wide. The former of said parcels having been heretofore deeded to Anthony Cooley. And also the following village lots in the village of Bronson, numbered, according to the last recorded plat of said lots, as follows, namely: 117-two lots north numbered, lying between said lots number 1 and 17. Also lots number 112, 22, 25, 37, 33, 34, 78, 39, 40, 44; said lot 44 being subject to a lease for ten years. Also lots 47, 48, 50, 52, 54, 60, 61, 62, 63, and 56. Also the lots lying between South street and the south line of said*196 section 15. Also two fractional lots lying between lots 33 and 39 on the west line of said section 15. Also parcel of land 3 rods by 8 lying immediately behind lot number 32, fronting on Main street. Together with all the ground intended for streets and public purposes according to the plat of said village, and together with all the privileges and appurtenances to said land in any way pertaining. To have and to hold the said premises as above described, with the appurtenances, unto the said John Berdan, his heirs and assigns, and to his and their use and behoof forever.”
The instrument concluded with the usual covenants of warranty as contained in warranty deeds.
We have already said that the deed from Richardson to Sally Bronson excepted the squares, and it necessarily follows that Berdan took no interest in the squares by this deed. But it might not be a fair construction to put upon the deed from Arnold to Burdick and Sheldon to say that it was meant to convey only what Berdan had acquired title to by the former deed. If we interpret the meaning to be that the description in the deed to Burdick and Sheldon from Arnold should be the same as that in the deed to Berdan, the plaintiffs’ title fails if the clause reading, “together with all the ground intended for streets and public purposes according to the plat,” etc., is to be construed to be a conveyance, whereas it stands if it is to be treated as an exception. Our deliberate conviction, from the language used, is that it was intended as an exception, because it would seem improbable that Bronson and wife would sell the streets and public grounds and except the lots, and because it seems the natural effect of the language used. This brings us to the conclusion that the plaintiffs have at the least a reversionary interest in this land on the face of the conveyances.
It is contended that a title was gained by adverse possession. The defendant cannot well dispute the claim that its grantor has occupied by virtue of a dedication. Its counsel strenuously insist that it occupied under a statutory dedication, while counsel for the plaintiffs as earnestly assert that it occupied under a common-law dedication, or
There is no doubt of the abandonment of the premises by St. Luke’s Church. It sold and vácated the lot and building, and the defendant, after obtaining a deed, demolished the church, and erected a building adapted to its own wants, and, presumably, to the objects of its organization. It is said that these are religious, and that the lot is still devoted to the purposes designed by the proprietor in his offer of dedication. Had the proprietor dedicated directly to St. Luke’s Episcopal Society, the case would have been no different in effect than it is now. He
The most forcible reasons given for maintaining a right to the fee in the defendant are the long occupancy of the premises by the St. Luke’s Society, its attempt to convey them, the erection of a costly building thereon without opposition, and the continuance of the devotion of the land to pious uses. As we have said, the abandonment was complete. The quitclaim deed from St. Luke’s Society does not raise a presumption that it was attempting to_ do more than to abandon the premises to Stockbridge, who had acquired an interest in the reversion. The erection of the building was at most an improvement of the land by a tenant in common, and therefore within the protection of a court of equity in proceedings for partition (Van Ormer v. Harley, 102 Iowa, 158); while to hold that a dedication of land for the use of a particular sect would justify the extension of the gift to any pious use by any other association of another denomination, or, indeed, not denominational, would be an arbitrary exercise of judicial power, without authority of law. The status of the parties is that the proprietor dedicated the property to a use. The gift was accepted, and the property occupied until the desire for a new church and a large money consideration induced an abandonment by the St. Luke’s Society. Whether the purposes for which the proprietor
The record shows that all of the testimony in the case is before us, and from the undisputed facts we are able to say that the plaintiffs should have recovered.
The judgment is reversed, and a new trial ordered.