85 P. 1061 | Ariz. | 1906
T. N. Clanton and five other persons, owners-of lots in a townsite known as Sidney, situated in Maricopa County, brought suit in the district court of said county against James R. Thorpe, the owner of certain lots in said townsite, to obtain a permanent injunction restraining Thorpe-from fencing in his said lots so as to close up certain streets and alleys shown on the map of said townsite, which streets- and alleys are alleged by them in their complaint to have been dedicated to public use. Thorpe, in his answer, admitted that he had fenced in and closed said streets and alleys, but pleaded that said streets and alleys had never been dedicated to public use; that the board of supervisors of Maricopa. County, by resolution entered upon the minutes of said board, had duly vacated and annulled an attempted dedication to* public use of that portion of said townsite which includes the streets and alleys so fenced by him; that after said action of said board he purchased the lots owned by him including the land abutting on and running through and around them designated on said maps as said streets and alleys; that after his said purchase he had cleared, fenced, and cultivated as: one tract said lots, including said designated streets and alleys, as a farm. From the evidence adduced at the trial the court found that the grantors of Thorpe, then the owners, and in possession of the southwest quarter of section 5, township 1, range 3 west, Maricopa County, laid the same out into-
The question presented by the record is of great interest, and is not free from difficulty. At the time of the filing of the townsite of “Sidney” by the grantors of Thorpe there was no statute in force in the territory relating to the dedication of streets and alleys by the owners of property. Such dedication as was made, therefore, by the platting of the land and filing of the map, and the sale of the lots according to the description as given in the map by'the grantors of Thorpe, was a common-law dedication. In so far as the rights of purchasers are concerned the distinction between a statutory and common-law dedication is unimportant, as such, distinction relates wholly to the nature of the title, which is granted, and not to the right of the public or to the rights of purchasers of lots to the free and unobstructed use of streets and alleys included within the dedication. Barney v. Keokuk, 94 U. S. 340, 24 L. Ed. 224. Where a dedication has been
The broad rule thus stated, that a purchaser of a lot in such tawnsite has a right, as such owner, to have all the streets and alleys, designated upon the map, kept open and unobstructed, and to enforce that right, has been affirmed by a few of the appellate courts of this country, and denied by others. The supreme court of North Carolina, following the doctrine as laid down by Elliott, has held, in a number of
Upon principle we think the extreme view taken by the North Carolina court cannot be sustained. It may be that all the streets and alleys which appear upon a map or plat and according to which the owner has sold and conveyed lots are thereby irrevocably dedicated to the public; yet only such persons as may be injured in an especial manner by the obstruction or closing of such streets have a right in equity to enforce the dedication. Equity will not enforce mere technical rights nor attempt to redress unsubstantial wrongs. It lies at the base of the right of an individual to proceed in a court of equity to restrain an interference with the enjoyment of some common right, that he suffer, by such interference, some special or particular damage not suffered by the public generally. The North Carolina cases recognize the principle that special damage must exist as a basis for equitable relief, but rest upon the theory, that a purchaser in a platted town-site buys with reference to the general plan, and pays an added price for his property by reason thereof, and that the free and unobstructed use of all the streets shown on such plan is necessary for the convenient use of every lot, and the obstruction of any one of such streets detracts from the value of such lot, are irrebuttable presumptions of fact. To apply these presumptions to townsites in a new country like this, where many abortive attempts are made to establish towns and villages, is to do violence to our sense of right, founded upon common observation and experience. ■ In the present ease the record shows that, although many years have elapsed since the platting of the townsite of Sidney, it has less than half a hundred people and these live in less than a dozen houses. The townsite may never be more populous. It seems to us that the question of the effect of the closing of the streets .by Thorpe upon the property rights of the defendants in error
Turning to the record, we find that the finding of the •court as to the injury which results to the appellees from the closing of the streets and alleys by the appellant reads as •follows: “That these plaintiffs as said purchasers of said lots from defendant and his grantors and predecessors in interest and as the owners and holders of the same have a joint and mutual interest in the common use of the streets and alleys of the said townsite of Sidney; and as inhabitants •of the said townsite are interested in keeping open and maintaining the streets and lots of said townsite as mapped and platted and laid out and staked on the ground for their joint .and several and mutual common convenience and benefit.” The effect of this finding is a declaration of law, rather than .a determination of an issue of fact. The plaintiffs may have been interested in keeping open the streets, and these streets may have been laid out “for their joint, several, mutual and -common convenience and benefit,” yet no injury may actually result to them from their closing; and as we hold that injury to every purchaser of a lot within such a townsite will not be presumed to result from the closing of any street or alley therein, which may have been designated on the plat of such townsite, it follows that the finding is insufficient as showing .special injury to have been done to the property rights of defendants in error by the acts of Thorpe, which differ in kind from those possessed by the general public. Upon the trial it appears that evidence was introduced, on the part of defendants in error, tending to show such injury, and evidence tending to show the contrary was introduced on behalf of plaintiff in error. As a basis for the relief granted by the court we hold that there should have been a determination of this question, not as a matter of law but as a matter of fact, and that without such finding no ground for equitable relief appears.