79 P. 323 | Kan. | 1905
The opinion of the court was delivered by
It is unnecessary in arriving at a conclusion to comment on each of the fifteen assignments of error contained in the brief of counsel who contend for a reversal of the judgment. A general discussion of the rules of law applicable to the facts will be sufficient.
The chief contention of plaintiff below in the trial court, and renewed here, was that the city of Wichita gained no rights to the land which is the subject of the action prior to May, 1888, when it was brought into the corporate limits. A further claim of plaintiff below, formulated into an instruction, which the court refused, is to the effect that if the county commissioners in 1885 laid out a highway 60 feet wide south of the land in controversy, which was equally as well adapted for road purposes as the strip adjoining it on the north, and there was no necessity shown for the public to travel out of such legally established highway, then the jury should have inferred that travel over the disputed strip was an accident merely, and did not show an intentional motive to claim adversely.
Counsel for plaintiff in error admitted on the trial
“We further admit that if it was a title to a specific piece of ground referred to had been acquired by the public, if there is such a thing as title by prescription in a highway, before it came into the city, the city would take the same and no further rights than the county had prior to that time. They would just step into the shoes of the county.”
This concession is in accord with the rule found in Elliott on Roads and Streets, section 116. No express grant by Griffenstein is relied on, but a common-law dedication only, operating by way of estoppel in pais; nor is there any claim of express acceptance of the strip in question for the uses of a road or street by the public authorities.
It cannot be denied that the owner of suburban property might by his conduct estop himself from denying that a strip of land through his farm of the present width of Douglas avenue had been acquired as a road by continuous and uninterrupted public use, to his knowledge, after many years of travel over it. Griffenstein, in 1871 or 1872, platted his first addition east of the land involved in this action. It extended to the north line of Douglas avenue. He dedicated a strip 114 feet wide as a street (Douglas avenue) from Lawrence avenue on the east to Water street on the west. Again, in 1872 he platted his second addition, extending Douglas avenue 300 feet west of Water street, to the width of 114 feet. He thus made Douglas avenue, 114 feet in width, abut at the west end on the tract in question, which is but fifty-four feet wide. All the time from 1872 until 1902 the public used the land as a road or street (an extension of Douglas
Much stress is placed on the fact that the county in 1885 laid out a public road 60 feet wide south of the land in controversy and within the strip 114 feet wide. It is contended that the rights of the public were fixed and concluded by this, and that any adverse user of the land adjacent to this county road on the north could not affect the rights of Griffenstein or subsequent owners. There was testimony tending to show that the establishment of this road did not confine public travel to the land within its boundaries ; that pedestrians, teams and vehicles going to and coming from the Arkansas river bridge traveled as much on one side of the 114-foot strip as on the other, to the knowledge of Griffenstein. He seems to have ’made no objection or protest against such use of his property, and asserted no claim of ownership adverse to the public, except in one instance when in 1884 he tendered a plat of the strip in controversy and petitioned the city council to take it into the corporate limits as Griffenstein’s ninth addition, which the governing body of the city refused to do. After this denial of his petition he asserted no dominion over the strip of land. It was shown not to have been assessed for taxes since 1885. In 1874 Griffenstein conveyed property owned by him abutting on the strip 114 feet wide, the north part of which is in controversy.
His other acts while mayor, set forth ip the statement, in recognition of the public character of the. west end of Douglas avenue to the full width now claimed by the city, were competent evidence showing that adverse user of it was known to, and acquiesced in by, Mm. (Ritchie v. City of South Topeka, 38 Kan. 368, 16 Pac. 332.)
“It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to the public use. If the intent to dedicate is absent, then there is no valid dedication. The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have.a right to rely on the"conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. Regard is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose. If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.” (Ell. Roads & Str. § 124.)
In section 126 of the work last cited the author comments on the rule of law that dedication may exist, although the owner may have a secret intent not to dedicate, on the principle that a man is presumed
The acts of the mayor and council in reaching beyond the limits of the municipality and improving the extension of Douglas avenue before it was brought into the city were competent evidence tending to show that as against Griffenstein the public asserted rights in and over the strip. The public use after the strip became a part of the city did not differ from the public use from' 1872 until it was included within the city limits. The mere fact that after it had been used as a country road for many years its character was changed to a city street did not affect the rights which the public gained in the land for a thoroughfare, nor in any manner make the acquiescence of Griffenstein in such use less effective as an estoppel against him. In Cemetery Association v. Meninger, 14 Kan. 312, 316, Justice Brewer, speaking for the court, said :
“No formal acceptance by any particular authorities is essential. The mere user by the public may be of such a character as to constitute an acceptance. Indeed, such user by the public with the knowledge of the owner may be sufficient evidence of both the dedication and the acceptance. We know this doctrine is denied by some courts, but it seems to us to rest upon the soundest principles.”
The appropriation of the highway by persons traveling over it was evidence of a dedication, whether the users resided in or out of the city. Proof of the use of the way by inhabitants of Missouri, Arkansas or Texas would have been competent in support of a common-law dedication by the owner of the soil.
“The ‘town, county, or parish,’ using Professor Greenleaf’s terms, is represented by the town, county or parish officers, but the officers are not the corporation. The municipal corporation consists of the inhabitants and not the officers; the officers are, in truth, nothing more than the agents of the corporation. The inhabitants, therefore, stand to the officers as principals, and if the principals have, by their conduct, accepted the dedication, it is of no great importance that the agents have taken no action in the matter. The inhabitants of a locality having by long-continued use treated the way as a public one, they make it such without the intervention of those who derive their authority from them. Creating towns, cities, and other public corporations, is ‘but the investing the people of the locality with the government thereof,’ and they may themselves exercise the powers of government of highways quite as effectually by continued use as by any other method.”
The traveling public appropriated the highway. That at a certain period of time after the use began the city took jurisdiction over it is immaterial if the use was continued.
We have examined the instructions given and those refused, and given attention to the alleged erroneous action of the court in admitting evidence, and find nothing requiring a reversal of the judgment. It is affirmed.
