Allied American Inv. Co. v. Pettit, 4915

• Decision Date: 14 April 1947
• Docket Number: 4915
• Citation: 65 Ariz. 283,179 P.2d 437
• Parties: ALLIED AMERICAN INV. CO. v. PETTIT et ux
• Court: Arizona Supreme Court

179 P.2d 437

65 Ariz. 283

ALLIED AMERICAN INV. CO. v. PETTIT et ux

No. 4915

Supreme Court of Arizona

April 14, 1947

Appeal from Superior Court, Maricopa County; Harold R. Scoville Judge.

Affirmed.

Kramer Morrison, Roche & Perry, of Phoenix, for appellant.

Harold J. Janson, of Phoenix, for appellees.

LaPrade Judge. Stanford, C. J., and Udall, J., concur.

OPINION

LaPrade, Judge.

This action was brought by appellees (plaintiffs below) for the purpose of securing an adjudication that Block 5 of Willow Addition, Maricopa County, Arizona, is a public park, and to enforce the asserted right of plaintiffs and others similarly situated to use the block for public park purposes. Such adjudication was made by the trial court. One of the defendants, Allied American Investment Company, the admitted owner of an asserted valid tax title to said premises, has appealed.

A resume of the evidence establishes these facts:

On March 26, 1913, Phoenix Title & Trust Company, Trustee, caused a plat of Willow Addition to be recorded in the office of the County Recorder of Maricopa County, on which plat Block 5 is marked "Park." The plat contains a formal dedication of the streets and alleys shown thereon, but makes no reference in specific words to any attempted dedication of Block 5 as a park. The property is not within any city or town. The entire addition was used for farming purposes as late as 1924 or 1925. Thereafter lots in the addition were sold and reference was made to the recorded plat in effecting such sales. For many years nothing was built on Block 5, though children played on it from time to time.

Several purchasers of lots testified that they were induced to buy lots by virtue of the fact that Block 5 (an area 275 ft. x 350 ft.) was designated as a "Park," on a plat exhibited at the time of their purchases. At a time when there were approximately thirty resident householders in the subdivision, a voluntary and informal community water association was organized and this association located a well on the block and for a number of years developed domestic water for the residents of the subdivision.

No affirmative steps were taken by the county to accept the dedication of such block as a park. It was assessed for the purposes of taxation each year and taxes were levied against it. Taxes were paid on it for some years and then the owner ceased paying taxes. Finally, it was sold to the state for taxes. Appellant paid for and secured a certificate of purchase, and on May 3, 1943, a treasurer's deed issued to it.

On September 7, 1944, appellant entered into an agreement for the sale of this property to Howard P. Walker. Walker sold certain portions of the property to persons not parties to this action, and two dwelling houses were in the course of construction when this suit was commenced.

The trial court found that the assessment and levy of taxes and the sale for unpaid taxes were valid, but concluded "* * * that the purchasers of Block 5, the Allied American Investment Company, took title to Block 5, Willow Addition, subject to its free use and enjoyment by plaintiffs and other purchasers of lots in Willow Addition as a public park." In other words the trial judge concluded, as a matter of law, that the purchaser at the tax sale acquired the fee, subject to a perpetual easement in favor of the public to use and enjoy the property for park purposes.

Appellant's assignments of error may be summarized as follows:

There is no evidence to support the court's findings or conclusion as to a common-law dedication of the property as a public park; and

All easements are extinguished by a valid sale for taxes.

In support of this last assignment, appellant submitted the following propositions of law:

I. A valid sale for taxes clothes the grantee with a new and complete title under an independent grant from the sovereign.

II. The Arizona statutory procedure to foreclose a tax lien is in rem against the property, and not in personam against the individual taxpayer.

III. Where, as in Arizona, the procedure to foreclose a tax lien is in rem, a sale of real property for taxes extinguishes all liens and easements.

IV. The formal dedication of the streets and alleys upon the plat negatives any intention to dedicate Block 5 as a public park.

In support of the first proposition of law appellant calls our attention to section 73-837, A.C.A.1939, and the holding of this court in Santos v. Simon, 60 Ariz. 426, 138 P.2d 896, and Hallenbeck v. Yuma County, 61 Ariz. 160, 145 P.2d 837. We are in accord with the holding in these cases to the effect that a valid sale for taxes clothes the grantee with a new and complete title under an independent grant from the sovereign (see section 73-506, A.C.A.1939), free of any prescriptive title (Santos case), and all other liens and encumbrances upon the property, except liens and encumbrances held by the state. In construing our statutes relative to the character and quantity of the title conveyed by a tax deed, we have held that a tax title dissolves the lien of a town for paving assessments, Town of Holbrook v. Koury, 50 Ariz. 526, 73 P.2d 698; that the lien for personal property taxes assessed against the piece of property sold for taxes is released, County of Maricopa v. Arizona T. & E. Co., 56 Ariz. 518, 109 P.2d 618; and that a sale by a county treasurer of realty for delinquent state and county taxes discharges power district taxes, Hallenbeck case, supra. We have not had occasion to determine whether negative easements such as building and use restrictions are dissolved and discharged by the conveyance of a tax title from a sovereign. On this subject we will make some observations later in the course of this opinion.

We are in accord with plaintiff's second proposition of law that the Arizona statutory procedure to foreclose a tax lien is in rem against the property and not in personam against the individual taxpayer. Its proposition is substantiated by our holding in Santos v. Simon, supra; Home Owners' Loan Corp. v. City of Phoenix, 51 Ariz. 455, 77 P.2d 818; and County of Maricopa v. Arizona T. & E. Co., supra.

For the moment we will pass appellant's third proposition of law. His fourth proposition is that the formal dedication of the streets and alleys upon the plat filed in the office of the county recorder negatived any intention to dedicate Block 5 as a public park. The material parts of the formal dedication are as follows:

"Willow Addition Dedication

"Know all Men by these Presents:

"That the Phoenix Title and Trust Company, Trustee, this 25th day of March, 1913, has subdivided into an addition to the City of Phoenix, Maricopa County, Arizona, under the name of Willow Addition, all of the Southeast quarter * * * and hereby publishes the accompanying plat as and for the plat of said Willow Addition, and hereby declares that said plat sets forth all lots, blocks, streets and alleys constituting said Willow Addition and gives the measurements and dimensions of each lot and block, street and alley therein; and that each lot and each block in said Willow Addition shall be designated by the number and each street therein shall be designated by the name that is given to each respectively in said plat; and the Phoenix Title and Trust Company, Trustee, hereby dedicates to the public for the use and benefit of the public all streets and alleys in said Willow Addition." (Emphasis supplied.)

This instrument was duly acknowledged before an officer authorized to take acknowledgments of deeds.

Dedication is the intentional appropriation of land by the owner to some proper public use. Bessemer Land & Imp. Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am.St.Rep. 26; People v. Marin County, 103 Cal. 223, 37 P. 203, 26 L.R.A. 659. The intention of the owner to set aside lands or property for the use of the public is the foundation and life of every dedication. See annotations in 7 A.L.R. 727; Ann.Cas.1916D, 1079; and Ann.Cas.1917A, 1112. The general rule set forth in the text in 16 Am.Jur., Dedication, sec. 16, is as follows: " Neither a written grant nor any particular words, ceremonies, or a form of conveyance, are necessary to render the act of dedicating land to public uses effectual in common law. Anything which fully demonstrates the intention of the donor and the acceptance by the public works the effect. Words are unnecessary if the intent can be gathered from other sources. * * *" See also Collins v. City of Phoenix, 9 Cir., 269 F. 219.

The doctrine of dedication by plat is summarized in 16 Am.Jur., Dedication, § 23, as follows: " The doctrine of dedication by plat is frequently connected with the sale of lots shown on the plat. The owner of a tract of land is held to dedicate such portions thereof as are designated for public use on the plat with reference to which he sells lots out of the tract. * * *" (Citing countless cases.)

Fifty-two years have elapsed since this doctrine was given recognition in Arizona. In the early case of Evans v Blankenship, 4 Ariz. 307, 39 P. 812, the question under consideration was whether a lot of land had been dedicated as a public square. There had been no formal dedication of the public square other than the filing of a map or plat in the office of the county recorder. The tract in question was designated on the map as a tract "'570' on its sides and '300' on its ends." On the margin of the map appeared these words "Public Grounds, 570-300." The court held that the owner in causing the map to be recorded had made an irrevocable dedication of the land in question to the public. In the recent case of Collins v. Wayland, 59 Ariz. 340, 127 P.2d 716, 718, this court recognized and gave its approval to dedication by plat or map. ...