Town of Derby v. Alling

40 Conn. 410 | Conn. | 1873

Seymour, C. J.

The petitioners seek to restrain the respondents from encumbering what is alleged to be a public highway and a portion of Third street in the village of Birmingham. The respondents admit that they are about to erect a building upon the place thus claimed to be a portion of Third street, but they deny that the street extends to the premises. The place in dispute has never been opened to the public, but is used, and for many years has been inclosed and used, by the respondents as their private property.

The respondents derive their title by deed from Anson G-. Phelps and Sheldon Smith, the undisputed former owners of the property. To show that the premises are part of Third street, and a public highway, the petitioners rely upon facts briefly and substantially as follows:—

Prior to 1834 the lands now constituting the borough of Birmingham were common farm lands and mostly owned by said Phelps and Smith. Between 1834 and 1837 they caused a map of the now present and then contemplated village to be made, which map they placed and kept in their office, called the office of the Birmingham Water Works. The width, direction, length and location of the streets of the village are on this map distinctly delineated. Among others Third street is mapped as extending westerly to the river road, and as embracing within its limits the premises in question.

After making this map Phelps and Smith sold sundry building lots in the village, bounding them upon streets as designated on the map.

At the annual town meeting of the town of Derby in December, 1842, the following resolution was passed: “ Resolved, that Caroline street, Minerva street, Olivia street, Factory street, Second street, Third street and Fourth street are hereby declared to be public. highways, on condition that the pro. prietors of said roads convey the same to the town.”

On the 30th of August, 1843, Phelps and Smith made a deed, which was accepted by the proper officers of the town and by them caused to be recorded, convoying to the town the land covered by the streets mentioned in the vote of the town, referring to the vote as the consideration of the deed and giving the width and direction of the streets; the deed closing as follows: “For more particulars relative to the above named streets, see map in the office of the Birmingham Water Works. To have and to hold the premises with all the appurtenances, unto the said releasees and their assigns forever, for public streets and highways only, so that neither we, the releasors, nor our heirs, nor any other person under us or them, shall hereafter have any claim, right, or title, in or to the premises or any part thereof, but therefrom we and they are by these presents forever barred and excluded.”

At the date of this deed Third street was opened, but not to the extent it now is..

The first point made by the respondents is, that in legal construction the operation of the deed is confined to Third street as then actually used and traveled, and does not extend to the whole of Third street as delineated on the map.

On this point we think the respondents are clearly wrong. The map is expressly referred to in the deed, and by reference is made part of it. We think therefore that the deed must be construed as embracing.all the land which is included within the limits of the street as delineated on the map.

Where the owner of village property makes and pub: lishes a map of it, with streets distinctly delineated, and then sells lots bounded on these streets, he comes under obligation to his vendees to open the streets to the public; the precise extent of the obligation being dependent on the particular-circumstances of the case. In this case Messrs. Phelps and Smith not only make and exhibit a complete map of their contemplated village and sell lots bounded on the streets, but in fulfilment of the duty they owe to those who have bought and who are to buy building lots, they make the deed to the town herein before set forth, which we regard as an important element in the case. The respondents indeed argue that the deed is of no value for two reasons: 1st, because, they say, the towm as a corporate body has no legal capacity to take the grant; and, 2d, because, they further say, a public highway is not the subject of grant. For the sake of the argument be it so, yet ut res magis valeat quam pereat the deed may take effect as a dedication, and as such should take effect to the full extent and measure intended by the grantors. The deed unequivocally shows that the grantors intended to devote the whole of Third street to the public for a highway. No words can be more expressive of their intention so to do than the words of this deed. As against the use of the lands for streets and highways, they say that neither they nor any person under them shall have any claim, right or title. The grantors have thus, by a most solemn instrument, placed on the records of the town, renounced all claim to Third street and every part thereof. This renunciation is, first, in favor of the town as the representative of the public in the matter of highways; second, in favor of those who have bought lots bounding on Third street or its connections; and, third, in favor of those who might thereafter purchase building lots bordering on Third street. It is found that many such lots have been sold since the date of the deed, and from the nature of the case these subsequent purchases have been made in the confidence that the plan of the village as mapped and deeded would be carried out and perfected; and by these sales Phelps and Smith have doubtless received an ample consideration for their renunciation of all future right in the streets. We think this deed should take effect in some form, either as a grant or as a dedication, according to the clear intent of the grantors as therein expressed.

The respondents’ counsel concede that the deed is effectual to make public the streets then opened and traveled. But no deed was needed for that purpose. The instrument clearly-intended to give the public authorities the power to open streets agreeably to the plan; and the question is, whether the right so to open them is secured by the deed; that is, suppose within a year after the deed was made, the selectmen of the town, in pursuance of a vote of the town, had proceeded to open Third street its entire length and breadth according to the map, could Phelps or Smith have legally objected ? If they should say that a dedication to be valid must be immediate, and that a dedication to be accepted and used in future is void, or at any rate subject to revocation, and that therefore their deed was inoperative because not acted upon immediately, the reply we think would be, that the grantors in the deed could not have contemplated the immediate opening and making of all the streets of the borough, and that the-parties contemplated the opening of the'streets as from time to time should be required by the growth of the village; and the objection comes to this, that the grantors refuse to abide by the dedication which the deed upon a fair construction clearly makes. Upon this objection we arc called on to decide whether a dedication to be used in future is valid in law; that is, whether the manifest object of this deed can or cannot be accomplished. We concede there are dicta to the contrary, but under the circumstances disclosed in this record we think it can be done.

In order to present the question distinctly, we will suppose that the deed in terms expressed that which, construed in connection with the facts found, we think it imports, that is, that it read “to have and to hold the premises for public streets and highways only, to be opened and worked from time to time as the public wants and the growth of the village may require.” Now if such a deed were made and accepted by the town, and portions of the streets named in the deed were opened and worked in pursuance of the deed, and the grantors should sell lots bounded on the streets, both before and after the date of the deed, would this, as against the grantors, be a valid dedication in futuro of the streets when the public wants require them to be opened ?

Courts have sometimes said that a contemplated dedication is naught; that dedications are to take effect in presentí and must be accepted before they become binding.

Where however a paper city is laid out as an entire thing the dedication of all the streets to the public is entire, and. when the public act upon such dedication, the acceptance of part may and in general will be construed as an acceptance of the whole as an entirety. The public enter upon a part in the name of the whole, to enjoy the parts as from time to time such enjoyment of them becomes necessary. This is carrying into effect the manifest intent of the grantor and of those for whose benefit the grant is made, and we see no difficulty in allowing this intent to prevail, and to call if a dedication in presentí to bo carried into effect in futuro. If there were absolute technical difficulties in the way of it as a dedication, we would resort to the doctrine of estoppel, and say the grantor is estopped by his deed and conduct from doing anything to interfere with the opening of the streets in accordance with his deed and maps.

We feel no hesitation therefore in holding, upon the facts appearing in the record, and upon the deed in connection with these facts, that Messrs. I’lielps and Smith made an irrevocable dedication of the whole of Third street to the public for the use of a highway, not however to be necessarily opened and worked immediately, but to be opened whenever within a reasonable time thereafter the opening of it to its full extent should be required; and that the acceptance of the deed by the town, and the acceptance by the unorganized public of tire portions of the street which were opened, is a constructive acceptance of the dedication of the entire street.

This view of Hie subject is taken by the courts of New Jersey. Mayor &c., of Jersey City v. Morris Canal Banking Company, 1 Beasley, 547.

But another and distinct point is here made by the respondents, in regard to which we feel some embarrassment. The deed of dedication was made in 1843, and in respect to the particular land in dispute was not acted on until 1872. jPrimd fade the continued possession by the grantors is consistent with the purposes of the deed and not adverse. In Henshaw v. Huntley, 1 Gray, 203, an entire city was laid out by public authority in a manner similar to that by which this borough was laid out by Messrs. Phelps and Smith. The streets were all surveyed and established at the city’s birth, but were opened as occasion required. One street remained unopened for twenty years, and the plaintiff had remained in quiet possession during the whole period. The court held that the possession was not adverse, there having been no order that the street should be completed.

But here, in 1850, Mr. Phelps makes to the parties under whom the respondents claim title, a warranty deed, under which exclusive possession has been held to the present time, and under which operations have been conducted involving considerable expense. It appears moreover in the finding of the court that in several instances the paper city did not conform to the public wants, and that changes were made of the location of streets. Some portions of the mapped streets have, it appears, been by common consent clearly abandoned.

The respondents strenuously contend that the right to open Third street over the premises in dispute, if it ever existed, has been lost by non user, by abandonment, and by adverse possession.

On a careful examination of the record we are not prepared to say that this claim of the respondents is unfounded, nor are the facts bearing on the question reported with sufficient fullness to enable us to say that the claim is well founded. We have therefore concluded to remand the case to the Superior Court, that the question may be more fully tried, whether the right to open Third street over the premises has or has not been lost. This question is mainly one of fact, and although the case itself is somewhat novel, the legal principies are familiar which must govern the enquiry.

There is no statute of limitations which as such is applicable to the case. The public could not be technically disseized, but public as well as private rights may be lost by unreasonable delay in asserting them. They may also be lost by an abandonment of them by those interested in their enforcement. Such abandonment may be inferred from circumstances or may be presumed from long continued neglect. The principal difficulty in this particular case lies in fixing the point of time when under all the circumstances the public authorities were properly called on to extend Third street to the river road over the premises in dispute. Until that time no laches are chargeable to any one. Until that time mere possession by the respondents would not be adverse to the public rights. One reason why wo feel it our duty to send the case back for a further hearing is, that this point is left so entirely untouched in the finding of facts.

If on further hearing in the Superior Court it shall appear that the public rights in the premises have been lost by 11011-user, or by abandonment, or otherwise, then of course the petition will be dismissed. If on the other hand those rights shall appear not to have been lost, then we advise that the petition be granted.

I11 order to come to this result we hold that the petition is properly brought by the town and borough, and that there is no misjoinder. The respondents argue that the whole duty which formerly belonged to the town over the highways in question is now by law transferred to the borough, and that therefore the borough is alone the proper party plaintiff. This argument is well founded unless the deed to the town vested a legal interest in the premises in the town. The respondents say that the town as a corporation has no legal capacity to accept such a deed; that the deed as a grant is void, there being no grantee competent to take an interest under it.

The opinion given by Judge Hinman, in Green v. Canaan, 29 Conn. R., 157, seems to favor the respondents’ views. Chief Justice Storrs concurred with Judge TTinman in the result of that case, and Judges Ellsworth and Sanford dissented, and especially dissented from that part of Judge Hinman’s opinion relating to the powers of the town as a corporate body in matters of dedication of highways.

In the case of Taylor v. Public Hall Company, 35 Conn. R., 432, the court held that a deed to the town of'Danbury for the use of a highway was valid and conveyed the fee so long as the land was used for highway purposes. Towns are charged with the duty of making and maintaining highways, and in respect to highways are appropriate representatives of the public. It seems to us that the town of Derby was an appropriate trustee to hold the title to the streets of this village for the purposes contemplated by the deed, and that the deed is not wholly void. If this he so, then some legal title remains in the town by virtue of the deed, which made it proper that the town should join with the borough as party plaintiff. .

In this opinion the other judges concurred.