168 P. 766 | Utah | 1917
The defendant, Salt Lake City, contends that Eighth South street in said city is 132 feet in width throughout its entire length. Respondent disputes this claim and contends that the street from Tenth East to Thirteenth East is only sixty-six feet in width, and that the remaining sixty-six feet claimed by appellant to be a part of the street is private property and belongs to the plaintiff. Title to this disputed strip of ground constitutes the subject-matter of this action.
Plaintiff was in possession of the premises under claim of title when the defendant, against her protest, entered upon the same and commenced to excavate the ground for the construction of a sewer, upon the assumption that it was part of the street, and therefore under the domination and control of the city. Plaintiff thereupon brought this action to quiet title, for damages, and for injunctive relief. Both the complaint and the answer indulge to an unusual extent in the statement of matters purely evidentiary, the substance of all of which, however, is to the effect that each party claims title to the property.
Plaintiff bases her claim upon divers mesne conveyances made by persons who occupied the property both before and after the townsite entry was made in 1871. These persons occupied the property in question,, together with other land adjacent on the south, as a farm or pasture. The land was
The defendant city bases its right to the premises in question upon certain plats or diagrams found in the files of the city and County of Salt Lake, which, however, do not appear to be authenticated as official plats. One of the plats, called plat F, is especially relied on by the defendant, because it is claimed that it covers the ground in question and that it was recognized by plaintiff and her predecessors in interest, with its lots, blocks, and streets, as a plat of that portion of the city prior to the town-site entry and since, and that plaintiff is bound thereby. Defendant city does not contend, as we understand it, that the city opened or used the ground in question as a public street prior to the adoption of the Fremont Heights addition, except by a general ordinance or resolution in 1887 authorizing the opening of streets and removing obstructions therefrom. But defendant city contends that, the ground being platted as a public street some time anterior ■to the entry of the town site in 1871, it was not necessary that the same should be opened or used by the public at that time in order to give the city title thereto. It contends, further, that the faction of the city in adopting and sanctioning the Fremont Heights addition in 1871, whereby Eighth South
These are the main contentions of the parties as to the bases of their respective claims of title. Minor considerations in support of or against these contentions will be referred to, if material, later on in the course of this opinion. The case was tried by the court; judgment rendered for the plaintiff, declaring her to be the owner of the property, awarding her damages and injunctive relief. Defendant appeals and assigns many errors.
In our view of the case, many of the questions argued at great length by counsel for the respective parties need not be considered in detail, as the conclusion we have reached renders them immaterial and their consideration wholly unnecessary. Some of the questions thus presented are of great importance, and whenever a case is presented in which they or any of them, become turning points in the case they will then be of vital importance, and should receive the consideration which their importance demands.
Whether or not the ground in dispute was a platted street at the time the town site was entered, and whether or not it was platted at that time and recognized by persons conveying adjacent property, and whether or not occupants of the land, in presenting their claims to the probate court, by not claiming certain ground platted as streets, thereby abandoned any right they may have had or became barred by the statute of limitations, and whether or not the federal grant under which the town site was entered should be construed one way or the other, are questions which are not in the least degree controlling in view of the conclusion at which we have arrived. In our view the one question in this case which overshadows all others, and to which this opinion should be mainly directed,
The facts bearing upon the question as to whether or not the defendant is estopped are either admitted, or so conclusively established by the testimony as to place them beyond question. As before stated, prior to 1891 the ground in question, with other land adjacent on the south, was inclosed and used as a farm or pasture. In 1887, Kelsey and Gillespie, real estate dealers of Salt Lake City, purchased the land which had been inclosed, including the ground in question used as a farm, as above stated, and succeeded to whatever title the prior owners of the property had. The first known claimant was Ellsworth who sold to Clift in 1867; Clift sold to Goddard; Goddard to Cummings, and Cummings to Kelsey and Gillespie. Those were the persons who had claimed the property and used it for farming purposes. Kelsey and Gillespie conceived the idea of making the ground, consisting of some 45 acres, an addition to Salt Lake City, consequently, in 1891, they platted it into lots, blocks, and streets under the name of Fremont Heights with Eighth South street, the street in question, 66 feet in width the whole length of the town site.
The undisputed record shows that in August, 1891, Louis P. Kelsey, James K. Gillespie, and Kate B. Gillespie claimed to be the owners of the property in litigation, basing their claim upon mesne conveyances commencing prior to 1867; that on or about the 4th day of August, 1891, they petitioned the city council of defendant city for the approval of a map whereby the ground in question, with other lands adjacent, was divided into lots and blocks, also showing certain streets dedicated to public use, among which was Eighth South street represented as being 66 feet in width between the canal above referred to and Thirteenth East. Abutting on said street on the north side were blocks 2, 3, 4, 5, 6, and 7, platted as private property, the same being the premises in dispute in this action. Accompanying this petition and map was an abstract of title
These various proceedings, acts, and conduct on the part of the city, the plaintiff, and her predecessors in title, occurred between 1891 and 1912, at which time the city commenced to assume dominion over the property by the construction of the sewer hereinbefore referred to. There is some evidence also tending to show that after the grade of the streets in Fremont Heights was established Kelsey and Gillespie, the owners thereof, commenced to grade the streets, but did not complete the same owing to the difficulty at that time of obtaining money. It further appears from the record that, prior to loaning her money and taking the mortgage therefor, plaintiff was shown the plat of Fremont Heights and the premises in question, and the nature of the security fully explained. It appears that other lots were sold in Fremont Heights addition and residences constructed thereon.
From the foregoing it appears that twenty-one years elapsed after the first adoption of the plat of Fremont Heights before the defendant city entered upon the premises and commenced the work which finally culminated in the commencement of this action. The trial court after finding, in substance, the
Appellant vigorously challenges the validity of this conclusion of law and cites many authorities in support of its contention. The facts upon which the conclusion is based being true, as found by the court, the question to be determined is, Is the conclusion sustained by the facts, and is it correct as matter of law? It is not our purpose to review in detail all of the cases and authorities cited, because upon examination it will be found they are nearly all cases in which the facts are so dissimilar to the facts in the case at bar that by no process of reasoning, however ingenious, can they be made to apply to the present case. The cases and authorities cited and relied on by appellant are as follows: Biglow v. Bitter, 131 Iowa, 213, 108 N. W. 218; City of Waterloo v. Union Mill Co., 72 Iowa, 437, 34 N. W. 197; City of De Kalb v. Luney, 193 Ill. 185, 61 N. E. 1036; Shirk v. City of Chicago, 93 N. E. 193; Schultz v Stringer et al., 168 Iowa, 668, 150 N. W. 1063; City of Sullivan et al. v. Tichenor, 179 Ill. 97, 53 N .E. 561; Note to Oliver v. Synhorst, 7 L. R. A. (N. S.) 243; Russell v. City of Lincoln, 200 Ill. 511, 65 N. E. 1088; Johnson v. City of Shenandoah, 153 Iowa, 493, 133 N. W. 761; Booth v. City of Prineville, 72 Or. 298, 143 Pac. 994, L. R. A. 1915B, 1084; Webb v. City of Demopolis, 95 Ala. 116, 13 South. 289, 21 L. R. A. 62; Harn v. City of Dadeville, 100 Ala. 199, 14 South. 9; Dillon, Mun. Corps. (5th Ed.) vol. 3, section 1194; Elliott, Eoads & Streets (3d Ed.) vol. 2, section 1189.
Upon examination of the foregoing cases it will be observed that nearly, or quite, all of them are based upon facts, as before stated, entirely dissimilar to the facts in the present case. They are cases in which the party contesting the right of the municipality relied on the doctrine of laches, prescription, adverse possession, statutes of limitation, or equitable estoppel by reason of long acquiescence in the conduct of the
In support of its contention respondent cites the following cases: Paine Lumber Co., Ltd., v. City of Oshkosh, 89 Wis. 449, 61 N. W. 1108; Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176, 36 L. R. A. 489; Weber v. Iowa City, 119 Iowa, 633, 93 N. W. 637; Reuter v. Lawe, 94 Wis. 300, 68 N. W. 955, 34 L. R. A. 733, 59 Am. St. Rep. 892; City of Davenport v. Boyd, 109 Iowa, 248, 80 N. W. 314, 77 Am. St. Rep. 536; Portland v. Inman Poulsen Lumber Co., 66 Or. 86, 133 Pac. 829, 46 L. R. A. (N. S.) 1211, Ann. Cas. 1915B, 400; Davies v. Huebner, 45 Iowa, 574; 2 Lewis, Eminent Domain (3d Ed.) section 854; Schooling v. City of Harrisburg, 42 Or. 494, 71 Pac. 605; City of Los Angeles v. Cohn, 101 Cal. 378, 35 Pac. 1002.
By far the greater number of the cases cited by respondent, like those cited by appellant, relate only to questions of adverse possession, prescription, statutes of limitation, and equitable estoppel by' acquiescence on the part of the municipality, after a long lapse of time in which it is claimed by the party contesting the right of the municipality that it should be estopped, under the circumstances, from asserting that the ground is a public street. Very few of the cases show that the municipality did any affirmative act, or made any declarations, as a basis for the estoppel. In other words, the majority of the eases cited by respondent simply assert the contrary doctrine to that held by the cases cited by appellant under facts generally, if not entirely similar. Numberless cases on
The case of City of Los Angeles v. Cohn, supra, cited by respondent, is analogous to the present case to a certain extent. The last paragraph of the opinion sums up the principal facts together with the judgment of the court. We quote the same in full:
"We again detail the facts. Before the buildings were erected, with a knowledge and concurrence of the owner, the city instructed its agent to investigate and report to the council its rights in the land. The agent did investigate, and reported that the city had no claim or title. This report was received, placed on fie, and entered in substance upon the minutes of the proceedings of the council. Nothing more was ever done by the eity until this action was brought, a period of twenty years later. Upon the reception of the report, and its filing among the records of the city, defendant’s grantors at once proceeded to the erection of a large and valuable building, and there it stands at the present day. A judgment for plaintiff would result in a destruction of this property. These facts are potent in themselves, and in our researches we have found no ease which may so well be termed an ' exceptional case. ’ We have found no case which with better reason should form a 'law unto itself.’ It is a case where an estoppel in pais is properly pleaded. Bor the foregoing reasons it is ordered that the judgment and order be affirmed.”
The court, in the case referred to (101 Cal. at page 377, 35 Pac. at page 1002) says:
"We thiiik, therefore, that mere adverse possession for the statutory period of a street or alley in a town which is a public highway cannot confer a title, but where such possession is accompanied with other circumstances which would render it inequitable that the public should assert its rights to regain possession, then, upon the principle of estoppel, a party may be protected against the assertion of right by the public, in order to prevent manifest wrong and injustice. For example, when the party, either under an honest conviction of right, has taken possession of a portion of one of the streets or alleys of the town, and expended Ms money in erecting buildings thereon without interference on the part of the public, these or perhaps other circumstances connected with adverse possession for the statutory period may afford good grounds for estoppel. ’ ’
We confess that we are unable to see any difference in principle between a person who, under the circumstances, spends
In Reuter v. Lawe, supra, there are some points analogous in principle to the facts in the present case. They are fairly well stated in the syllabus which reads as follows:
"The owner of land (Lawe) made and recorded a plat thereof, all being divided into lots and blocks, except a tract designated ‘Public Square.’ Twenty-seven years later he replatted this and other land, the land previously designated as ‘Public Square,’ being designated as ‘Lawe’s Park,’ and, together with certain lots, being also designated as ‘block 21.’ An act passed seven year's later; which incorporated a city embracing such territory, expressly adopted the plats, and provided for replatting the premises covered thereby. Proceedings were taken by or under the direction of the city council resulting in the recording five years later, of an official plat, by which the land previously designated as ‘Lawe’s Park’ was subdivided into lots of block 21. Shortly after this, Lawe incurred some expense in taking out stumps and otherwise improving the premises. Soon after incorporation of the city, Lawe, by order -of the city council built a sidewalk along one side of such park. The land designated as ‘Public Square’ was not taxed until the making of the second plat, but was taxed thereafter. During all the time Lawe continued in the actual possession of the premises, the same being actually inclosed and used by him throughout substantially the whole period. [The court] held that, notwithstanding any dedication by the first plat, the public was estopped to claim the land.”
In 94 Wis. at page 306, 68 N. W. at page 957, in concluding its opinion, the court says:
‘‘The adoption of the second plat by the act incorporating the eity of Kaukauna in 1885, the requirement made by such city of Lawe to1 build a sidewalk along the si'de of the park, the construction of such sidewalk, the payment of taxes assessed annually on the property for a long period of years, and the improvement of the property at considerable expense,. relying upon the long-continued recognition of private ownership by the municipality, in which all persons interested, so far as appears, acquiesced, with all the other facts and circumstances, show satisfactorily that, if a change of position on the part of the public be now allowed, such injustice and wrong will result as to warrant the application of the doctrine of equitable estoppel in pais to prevent such injustice. ’ ’
“Upon consideration, it will perlxaps appear that the following view is correct: Municipal corporations, as we have seen, are regarded as having, in some respects, a double character, one public, the pther (by way of distinction) private. As respects property not held for public use, or upon public trusts, and as respects contracts and rights of a private nature, there is no reason why such corporations should not fall within limitation statutes, and be affected by them unless excluded from them. Por example, in an action on contract or for tort, a municipal corporation may plead or have pleaded against it the statute of limitations. But such a corporation does not own and cannot alien public streets or places, and no mere laches on its part or on that of its officers can defeat the right of the public thereto; yet there may grow up,-in consequence, private rights of more persuasive force in the particular case than those of the public. It will perhaps be found that eases sometimes arise of such a character that justice requires that an equitable estoppel shall be asserted even against the public, but if so, such cases will form a law unto themselves, and do not fall within the legal operation of limitation enactments. The author cannot assent to the doctrine that, as respects public rights, municipal corporations are impliedly within ordinary limitation statutes. It is unsafe to recognize such a principle. But there i's no danger in recognizing the principle of an estoppel in pais as applicable to exceptional cases, since this leaves the courts to decide the question, not by the mere lapse of time, but upon all the circumstances of the ease to hold the public estopped or not, as right and justice may require.”
"A municipal corporation can no more profit by fraud upon property owners than an individual and may be estopped by conduct.”
Or, as said by Judge Dillon, in note one to the section above quoted, referring to the character of acts necessary to constitute an estoppel:
The principle of estoppel in pais has been applied to exceptional cases where the elements calling for its exercise appear to have been an abandonment of the public use for the prescriptive period, inelosure and expensive improvements, such as large and costly buildings, or acts of the municipality inducing the abutter to believe that there is no longer any street, and the expenditure of money vn reliance upon the acts of the municipality. The absolute bona fides of the abutter or adverse possessor is a most important factor where an estoppel in pais is claimed. The acts relied on must be of such character as to amount to a fraud, if the city were permitted to claim, otherwise.” (Italics ours.)
Appellant, however, makes the further objection that the court erred in admitting certain testimony relating to the question of damages, and cites Hempstead v. Salt Lake City, 32 Utah, 261, 90 Pac. 397, in which ease this court sustained an instruction in effect that the measure of damages was the difference between the market value of the property immediately before and after the improvement. In this case, as we read the record, that was, in effect, the character of testimony that was received by the court, and upon which it based its judgment. We find no error in the record. The decree of the trial court is affirmed, appellant to pay costs.
