Porter v. Carpenter

39 Fla. 14 | Fla. | 1897

Mabry, J.:

The petition of appeal filed in this case confines the •errors assigned to the final decree rendered on the pleadings and proofs, and the refusal of the court to-grant a rehearing on a petition filed for that purpose. We will, therefore, in accordance with the rule on the subject, confine this opinion to the assignments of error stated.

We decided in the case of Winter vs. Payne, 38 Fla. 470, 15 South. Rep. 211, that where the owner of a tract of land makes a town plat of it with spaces-for streets laid out thereon, and conveys lots with reference to and bounded by such streets, he thereby dedicates the said streets to public use as such, and the grantees in the conveyances acquire the right to have said streets kept open for the benefit of light and air, as well as passageways. The cases sustaining this-rule are numerous. It is said in one case — Meier vs. Portland Cable Ry. Co., 16 Oregon, 500, 19 Pac. Rep. 610, 1 L. R. A. 856 — that “when a person maps off his-land into town lots and streets, and offers his lots for sale by reference to the map, there is no mistaking his intention. He designs, if he is honest, that the streets shall belong to the public, and that they will- be accepted and used by it as such, whenever the public necessity or convenience requires it. He does not, of course, anticipate that the various members of the community will rush forward in hot haste to accept his offer, but that its acceptance will abide the course and events of time. The public exigencies requiring the use of the property may not arise for years, but that will not, when he has induced parties to invest in his scheme, release him from the obligation of his-■agreement. Ilis gift is unconditional, and he can never revoke it without the intervention of circumstances rendering it impossible for it to take effect.” The case of Shea vs. City of Ottumwa, 67 Iowa, 39, 24 N. W. Rep. 582, announces the same principle. Where a town plat is made with spaces on it that appear to form no part of any of the platted lots, but indicate streets or avenues, and the lots are sold with reference to the plat, the presumption is that such spaces are ■dedicated to the public as streets or avenues. Purchasers of such lots have a right to rely upon the presumption that they are buying property with all the rights and privileges of abutting owners on urban highways, unless there is something in the plSt to remove snch presumption. City of Denver vs. Clements, 3 Colo. 472; Hanson vs. Eastman, 21 Minn. 509; City of Indianapolis vs. Kingsbury, 101 Ind. 200. If the plat is complete in itself and free from ambiguity it will control, but if ambiguous, extrinsic evidence may be received in its aid. Brown vs. Manning, 6 Ohio, 298, S. C. 27 Am. Dec. 255; Village of Princeville vs. Auten, 77 Ill. 325. Where there is a complete dedication, as when the owner of land makes a plat of it with spaces for streets laid out thereon, and lots are sold with reference to the plat, the purchasers have the right to insist on keeping said streets open for public use as such, and they can not be closed up or obstructed unless in pursuance of legal authority.

In the case before us there is not such a clear and full presentation of the facts, evidently in existence, .as to leave any adjudication on them free from doubt, but applying the principles of law stated, and giving proper consideration to the -finding of the chancellor on the facts, we are of the opinion that enough is shown on the part of complainant below to sustain the-decree enjoining the appellant Charles P. Porter from placing any obstructions in what is known as Stanford street in the town of Bartow.

It would require considerable space to present a,ll the facts bearing upon the question involved in the case, and, as its determination is one of fact under the. principles of law stated, we do not deem -it necessary to go into details. It appears that the land on which the town of Bartow was originally located was donated by Jacob Summerlin for a county town site, forty acres to the county of Polk for county purposes, forty acres to churches and forty acres for school purposes. X town plat, certainly of part of the donated lands, was made in 1866, and lots sold according to this plat. There is testimony tending to show that both the county and school lands were surveyed and platted by Robert Wilkinson in 1866, and there is testimony tending to show that only the county laud was surveyed and platted at that time. There is in the office of the clerk of the Circuit Court for Polk county, and has been for a long time, an old plat, and it appears to have been -recorded in a book of accounts of the County Commissioners many years .ago. On it is marked the names of purchasers of designated blocks- and lots, showing-in some cases payments in cash, and in others not paid. We have no doubt from what is shown that this plat, or the original of it, was the basis of the primary location of the town of Bartow, and that Jots were sold with reference to it. It indicates by its plan of execution that eighteen blocks were laid off as town blocks, with divisions of blocks-into lots, and also spaces around the blocks for streets or urban highways. The blocks and lots are numbered, but there is nothing to indicate the contents of blocks or lots, or the width of the spaces for streets. The testimony clearly enough shows that the design was for each block to represent one acre, divided into four lots, and the spaces to represent streets sixty-six feet wide. The lots of appellee are not covered by the old plat referred to, and no plat has been put in evidence covering them. The bill alleges that the portion of the land where appellee’s lots are situated was surveyed in 1866 into blocks of one acre each, divided into lots of one-fourth acre, and with streets running between said blocks, east and west, north and south, sixty-six feet wide, and that lots, including those owned by appellee, were purchased and improved with direct reference to this survey. The answer admits a survey made by Wilkinson in 1866. and that appellant Porter owned lot 17, immediately south of Stanford street, and that he had erected the northern line of his enclosure thirty feet in a northerly direction, running east and west along what was designated in the bill as Stanford street, but it is denied that the Wilkinson survey extended to the southern portion of the town, where appellee’s lots are situated, or that said survey was ever adopted or legalized, or became binding upon the defendants or any one else. Here is presented the only real defense to the bill, so far as appellant Porter is concerned. We have become satisfied that the testimony submitted to the court will sustain the view that there was a survey and town plat of the locus in quo in 1866, corresponding with the old plat referred to of the county land, and that blocks and lots, as early as 1868, were purchased and improved with reference to such plat. Appellee has owned block 8, on which his hotel is located, since •1889, and it is admitted that this block is bounded on the south by Stanford street. This conclusion places ¡appellee in a position to insist on maintaining the streets as they were laid out before his purchase. He •should not change the streets in any way by encroach.meaits on them, but he has the legal right to insist on their continuation, open and free, as passageways just .as they were laid out in the original survey, and when the abutting lots on them were purchased. The an•swer admits that Porter was putting fencing in Stanford street in a way to obstruct it, if it was originally sixty-six feet wide. Complainant’s proof tended to show that all the streets around the blocks were sixty-six feet wide. The town of Bartow became incorporated in 1882, but it is not shown that the municipal ¡.authorities ever authorized or directed any survey to fee made of the town, and if it had the accrued rights ■of purchasers of lots bounded on streets could not be interfered with unless in accordance with legal authority.

Jacob Summerlin who, it seems, was acting for the trustees of the school lands, had a survey made of the .school *‘forty” in 1884, but we need make no further reference to this survey than to say that appellee’s rights, acquired by his purchases under a former survey, could not be thereby destroyed. The Summerlin .survey doubtless served a useful purpose, but, covering- the field of a former survey, its utility is in proportion-to its accuracy to such former survey.

The bill should have been dismissed as to the town • of Bartow. It is not shown therein that the town had .any agency in obstructing the street in question, and the only complaint made as to it is that a petition to .'have the obstruction stopped or removed had been denied. We discover no case whatever against the town for the interposition of the writ of injunction.

There is nothing in the recoi'd to show that the court erred in refusing the application for a rehearing.

Let the decree be reversed as to the town of Bartow, and modified as to Charles E. Porter so as to enjoin him from placing obstructions in Stanford street on the south side of appellee’s lot 8 in the town of Bar-tow, and to direct the removal of those already placed therein. The costs of this suit, as to the town of Bar-tow, to be paid by appellee, and the other costs in this court to be paid by appellant Porter.