29 N.E.2d 786 | Ind. | 1940
The appellants were plaintiffs below and filed this action for a writ of assessment of damages and the appointment of appraisers pursuant to the provisions of the eminent domain statutes. Sections 3-1701, et seq., Burns' 1933, §§ 14061, et seq., Baldwin's 1934. Appellees filed objections to the issuance of the writ, to which appellants replied. The cause was submitted to the court for trial upon a stipulation of the facts. Judgment was rendered against appellants that they take nothing by their complaint, and that the issuance of a writ of assessment be denied. Motion for a new trial was filed, based upon the ground that the judgment was not sustained by sufficient evidence and was contrary to law. On appeal the appellants rely upon the alleged error of the court in denying the motion for a new trial and in sustaining the objections filed by the appellees.
The facts stipulated disclose that on October 8, 1912, the appellant David F. Smith, then unmarried, and 20 other landowners executed a written instrument whereby they dedicated to the public for highway purposes a strip of land 100 feet in width, described by metes and bounds, extending across and over the land of the grantors named in said instrument of conveyance; that all of the land lay outside of the corporate limits of the City of Indianapolis, but adjoined its north corporate line at the termination of North Meridian Street in said city; that the 100-foot strip extended directly north from the north end of Meridian Street, with the exception that beginning on the land of the appellant Smith the 100-foot strip bore to the *646 west around a hill or high land; that said bend to the west extended over the land of the landowner adjoining Smith on the north and then returned to the east and extended north on a direct line.
The instrument whereby the appellants and others dedicated the land to the State of Indiana in part is as follows:
"DEDICATION OF NORTH MERIDIAN STREET TO THE STATE OF INDIANA AND AGREEMENT.
"We the undersigned owners of real estate (describing it) hereby dedicate to the public, to be known as North Meridian Street, so much of the following described strip of land that lies within the boundaries of the land owned by us in the above one-quarter (1/4) sections, subject to the following restrictions:
"Said strip of land being 100 feet in width, lying 50 feet on either side of the following described center line to-wit: . . .
"All in accordance with the attached plat and the following restrictions . . ."
The restrictions enumerated pertain to buildings and structures, and provide that none shall be built within 100 feet of the property lines of Meridian Street; that all buildings shall be used for dwelling purposes, except necessary out-buildings; that no building within 350 feet shall be of less cost than $5,000; that no malt, vinous, or spirituous liquors shall be made or sold on any part of said real estate; that the roadway described shall be limited to pleasure vehicles; that the several owners may enforce these restrictions by injunction; that the restrictions enumerated shall be imposed on each part and parcel of the real estate and run with the land for 20 years from the 1st day of October, 1912.
The instrument was executed by the landowners, joined by their husbands or wives, duly acknowledged *647 by a notary public, and recorded in the recorder's office of Marion County, which recordation included a plat showing the lands owned by the grantors, and the 100-foot strip extending north to be known as Meridian Street. Before the instrument was recorded, as shown on the back thereof, it was "duly entered for taxation October 9, 1912, W.T. Patten, Auditor, Marion County."
The first question presented for consideration by the appellants is based upon the proposition that the highway described in said written instrument was not opened and used within 6 years thereafter, and, therefore, ceased to be a highway for any purpose whatsoever. To sustain their position they cite and rely upon § 36-1808, Burns' 1933, § 8771, Baldwin's 1934. This section is section 16 of chapter 167, Acts of the General Assembly of 1905, page 521. It provides that every public highway already laid out or which may be hereafter laid out, and which is not opened and used within 6 years from the time of its being so laid out, shall cease to be a highway for any purpose. Appellants contend that this section is applicable and controlling where a highway has been dedicated by the landowners by the instrument of dedication referred to.
In considering the extent and effect of this section, it will be noted that it is a part and parcel of a statute authorizing the condemnation of real estate by proceedings had on petition filed with the board of commissioners of the county by 12 freeholders. After such petition is filed, viewers shall be appointed to locate the highway. If their report is favorable to the highway and no objections are filed, it shall be recorded as a highway. It is provided that remonstrances may be filed by landowners, and reviewers shall be appointed who shall qualify as provided by section 6 to assess *648 and report damages in favor of the remonstrators. If it shall be made to appear to the board of commissioners that the damages assessed are unreasonable, it may set the assessment aside and order another review. Section 9 provides that if any freeholder residing in the county shall remonstrate against the proposed highway upon the ground that it is not of public utility, reviewers shall be appointed and qualified to pass upon that question. From the final action of the board of commissioners in reference to the highway, the statute provides for an appeal to the circuit court. Section 10 provides that no highway shall be opened until the damages assessed shall be paid. The following sections contain provisions as to qualifications of viewers and reviewers, for removal of fences, and other provisions. Following these sections is section 16, supra, upon which appellants contend that, because the State of Indiana did not take possession of the 100-foot strip of land and open it for public travel within the 6-year period, it is forever barred.
To uphold their contention and construction of the statute, the appellants cite Decker v. Washburn (1894),
They rely upon Lake Shore, etc. v. Town of Whiting (1903),
The other case relied upon is Baltimore, etc., R. Co. v.Town of Whiting (1902),
It is clear that the 6-year statute relied upon by appellants, together with the decisions cited, would be controlling if this were a proceeding before the Board of County 1, 2. Commissioners to condemn land for use as a public highway, and, after such condemnation and assessment of damages, the petitioners had failed for a period of 6 years to pay the damages and open the road. It is not clear, however, that the statute is applicable to the case at bar. Here is a voluntary dedication of land, by a written instrument, *650 to the State of Indiana for public use by 21 landowners, and by the terms of the written instrument these owners parted from all right, title, or interest in the 100-foot strip. The small triangular tract, upon which appellants ask a writ of assessment, is wholly within the 100-foot strip. To emphasize their intention of conveying this land to the state for public use they caused the instrument to be recorded in the recorder's office, and the 100-foot strip to be taken from their land and placed on the tax duplicate in the name of the grantee, whereby the grantors were relieved from further payment of taxes levied thereon by the county and state.
Statutes in this state authorize the state, counties, townships, towns, and cities to receive donations and dedications of lands for public use. Sections 36-118 and 48-801, Burns' 3. 1933, §§ 8657 and 12473, Baldwin's 1934. No distinction has been discovered in reference to the law of dedication to one or other of these divisions. Acts which would constitute a dedication to the State of Indiana would also amount to a dedication to a city, if it had been made to the city or county instead of the state.
In Rhodes v. Town of Brightwood (1896),
"We are of opinion that the contention of the appellee is the law, and must prevail.
"In Dillon Munic. Corp. (4th ed.), section 644, it is said that, `The doctrine of dedication to public uses has also been extended and applied to public squares in cities and villages . . .; and the fact of dedication may be established in the same manner as in the case of highways and streets.'"
The court further said that where dedications by maps and plats are so made as to render it difficult to determine their nature and extent, it is a safe general rule to resolve doubts against the donor, and within reasonable limits to construe the dedication so as to benefit the public rather than the donor. The court held that the intention of the grantor to donate Morris Park to the public was manifested by his acts; that the *652 dedication was complete and binding upon the donor and his grantees.
Walmer v. Town of Bremen (1934),
The question of the dedication of land for public use is discussed in Haynes v. Thomas (1855),
The question of dedication is discussed in Hall v.Breyfogle (1904),
"Acceptance by the public of a dedication may be manifested by some formal act of the public authorities, or implied from the latter's improving or repairing the same, or from any other act with respect to the subject-matter that clearly indicates an assumption of jurisdiction and dominion over the same."
So in the case at bar, the intention of the appellant and his 20 associates is clear and distinct. The instrument conveying the 100-foot strip to the state for public use contained no reservations in favor of appellants. That instrument, together with a plat exhibiting clearly and distinctly the land conveyed to the public, was never revoked by the grantors. The State Highway Commission in 1931 formally accepted the dedication and immediately proceeded to and did construct thereon a 4-lane concrete highway in the year of 1932, and at all times since the same has been used as a principal thoroughfare for travel to and from the City of Indianapolis; and the same is now a continuation of Meridian Street due north from the city.
It is stated in The Town of Marion v. Skillman (1890),
Appellants, however, say that the instrument does not amount to more than an offer to dedicate. It appears from the authorities that an offer to dedicate may be classified as either a 4-7. common-law or a statutory dedication. The facts here presented fall within the class designated as a common-law dedication, and, under the authorities, transfer title as effectively and as fully as a deed of conveyance, so long and until it is revoked and set aside by the grantor. 16 Am. Jur. 363, Dedication § 19; Ramstad v. Carr (1915),
It matters not, so far as appellants' rights are concerned, whether the transfer of the 100-foot strip by the grantors was a complete dedication or an offer to dedicate; the result 8, 9. is inevitably the same. The title was vested in the public. It was not revoked prior to an acceptance by the state and an expenditure of a large sum of money to improve it. The proceedings instituted by the appellants for a writ of assessment were not commenced until 1938, long after the formal acceptance by the State Highway Commission. The authorities are abundant which hold that where the dedication is beneficial to the donee without imposing any burdens, acceptance will be presumed as of the date of the dedication. McQuillin Municipal Corporations (2nd ed.), Vol. 4, p. 554, § 1703; Ramstad v.Carr, supra.
It may be observed from the facts stipulated and the briefs filed on appeal that the part of the appellants' land constituting a direct line north at the point where the 100-foot strip bore to the west was regularly condemned by the state, damages were assessed and presumably paid to the appellants. At least no question is presented as to that matter. The triangular tract contained 35/100 of an acre, wholly within the 100-foot strip, and located at the point where the 100-foot strip bore to the west. The state did not condemn this tract and refused to make payment therefor, and defended *656 the action upon the ground that appellants duly and completely dedicated the tract to the state for public use, and that the state accepted the same and is using it for the purpose for which it was dedicated. There can be no doubt as to the correctness of appellees' position. From a review of the entire record it is apparent that the trial court reached the correct conclusion.
The judgment is affirmed.
NOTE. — Reported in