Slater v. Lathrop, 272 F. 661

272 F. 661 | 9th Cir. | 1921

GILBERT, Circuit Judge

(after stating the facts as above).

The appellants contend that some of the findings of fact of the court below are but conclusions of law, and that others are unsustained by testimony. We have carefully examined the evidence, and we think the undisputed testimony sufficient-to sustain the decree of the court below. Two of the owners, who laid out the alley and constructed their buildings in such a way as to leave an open passageway to the public, testified that they had no intention to dedicate it to the public, and that they and the other owner agreed beween themselves that they might close the alley at any time that they saw fit; but in ascertaining whether there was intention to dedicate a street or alley way to the public the courts do not look to the secret intention of the owner of the land, but consider his acts. In this case the owners never disclosed to the public the existence of their mutual understanding that they reserved the right to close the alley. On the contrary, they left the alley open to public use for more than 10 years, and during that period, without objection from them or their successors in interest, large numbers used the alley as a passageway between First and Second street. Those facts alone have been held sufficient to estop an owner to deny dedication. In Cincinnati v. White, 6 Pet. 431, it was held that no particular form of ceremony is necessary in the dedication of land to public use, and that all that is required is the assent of the owner of the land and the fact of its being used for the public purposes. Among the cases in point are Kennedy v. Portland, 92 Or. 300, 179 P. 667; Hartley v. Vermillion, 141 Cal. 339, 74 P. 987; Humphrey v. Krutz, 77 Wash. 152, 137 P. 806; School Dist. v. Tooloose (Mo.) 195 S.W. 1023; Evans v. City of Brookings, 41 S.D. 225, 170 N. W. 133; Riley v. Buchanan, 116 Ky. 625, 76 S.W. 527, 63 L.R.A. 642, 3 Ann.Cas. 788; Town of Marion v. Skillman, 127 Ind. 130, 26 N.E. 676, 11 L.R.A. 55; Onstott v. Murray, 22 Iowa, 457; Howard v. State, 47 Ark. 431, 2 S.W. 331; City of Bloomfield v. Allen, 146 Ky. 34, 141 S.W. 400, 7 A.L.R. 122.

But in this case there was more than the mere public use of the alley for a period exceeding 10 years. There were acts of the city council which tended to show acceptance oí the alley as dedicated to public use. On June 17, 1912, the common council directed the chief of police to notify the owners to “repair the walk in Burkhart alley.” On June 16, 1914, the common council authorized the fire committee to place hydrants on First and Second street “opposite Burkhart alley.” On November 6, 1916, the common council by ordinance again directed the owners “to repair Burkhart alley.”

The appellant cites authorities to the proposition that when the proprietor of land constructs an alley over it for his own use, the mere use thereof by the public through his sufferance, no matter how long continued will not show dedication to the public use. 18 C.J. 105, and cases there cited. But the facts as we view them, do not show that Burkhart alley was opened for the mere use or convenience of the adjacent landowners. They show, on the contrary, that the alley was opened as a thoroughfare between two streets, bisecting for the public convenience an unusually long block. One of the landowners, who joined in opening the alley, testifying for the appellants, said that he considered it an advantage to have Burkhart alley open as a public highway and have the public use it freely as a highway.

The appellants contend that dedication is inconsistent with the fact that they have continuously paid taxes on the land occupied by the alley where it adjoins their respective lots. All that appears, however, is that the appellants have been assessed and have paid taxes upon lots 7 and 8, respectively. They are the owners in fee of those lots. The alley is but an easement occupying a very narrow strip of each. The lots are still known by the numbers given them before the alley was opened. Whether or not the land occupied by the alley was taken into consideration by the assessor does not appear, and we cannot see that anything can be claimed from the fact that the appellant paid taxes on lots 7 and 8. Campau v. City of Detroit, 104 Mich. 560, 62 N.W. 718.

The decree is affirmed.