Balmat v. City of Argenta

• Decision Date: 27 March 1916
• Docket Number: 276
• Citation: Balmat v. City of Argenta, 184 S.W. 445, 123 Ark. 175 (Ark. 1916)
• Parties: BALMAT v. CITY OF ARGENTA
• Court: Arkansas Supreme Court

184 S.W. 445

123 Ark. 175

BALMAT v. CITY OF ARGENTA

No. 276

Supreme Court of Arkansas

March 27, 1916

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

Bratton & Bratton, for appellant.

1.There was never a dedication of the alley to the public; but there was a reservation that the alleys might be closed.Dillon on Mun. Corp., §§ 631-6;9 How. 10;77 Ark 570;91 Id. 350;84 Id. 520;111 Ark. 548;112 Id. 202.There was nothing more than a mere license to pass.59 Ark. 35.The alley had been fenced for twenty-five years.The dedication must be to the public.69 Md. 346.Use by permission is not sufficient.110 Ind. 509;67 Ill. 368;2 Met.(Ky.) 98;35 Barb. 395;103 Ind. 349.

2.The intent to dedicate was wanting.60 Ill. 324.Mere permission will not create a public easement.67 Ill. 368.No length of time of use will make a public highway, unless adverse.36 Ia. 485.There never was a dedication, and the city was entirely without authority.

Fred McDonald, for appellee.

1.There was a dedication to the public and an acceptance.85 Ark. 525;58 Id. 142;77 Id. 177, 221; 68 Id. 40, 68;Ib. 40, 69;85 Id. 524.The dedication is irrevocable.85 Ark. 524;77 Id. 221.

2.A reservation of closing alleys after dedication is void.13 Cyc. 461;48 Mass. 309;2 L. R. A. 87;57 Mo. 297.

3.There was no limitation; there was a dedication to public use, and the city and the public were the beneficiaries.68 Ark. 39, 54.

4.A deed of streets to the "present and future owners" is a dedication to the public (50 Cal. 175), and so is a deed to the inhabitants.71 Me. 144;57 Mo. 297;49 A. 822.The clause that the alleys, etc., shall be open highways is sufficient.50 Ark. 466;84 Wis. 205."Highways" includes alleys.12 Okla. 82.All the acts, conduct and writings clearly show an intention to dedicate.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellant in the chancery court of Pulaski County to restrain the officers of the city of Argenta from breaking appellant's inclosure and tearing down his fences for the purpose of opening an alley.The officers of the city attempt to justify their invasion of the premises under a claim of dedication to the public by appellant's grantor.James H. Barton(who was appellant's immediate grantor) and James L. Davis formerly owned the property, and, in the year 1887, platted it into city lots with intersecting streets and alleys indicated on the plat.The plat was duly acknowledged and filed for record, and attached thereto were field notes and the following statement, signed by the dedicators:

"Know all men by these presents:

"That whereas, we, James H. Barton and James L. Davis, are the owners of the land described in the foregoing notes; and whereas, we have caused the said land to be laid off into lots and blocks, streets and alleys as shown on the plat preceding said notes.Now, therefore, we hereby declare that the said land so laid off shall hereafter be known as Davis' addition to the town of Argenta, and the streets shall remain open highways forever and the alleys shall remain open highways for the use of the owners of or residents upon the blocks through which they run, but the alley in any block may be closed at any time, by all owners of lots in any such block duly executing, acknowledging and placing on record in the recorder's office of Pulaski County, a valid instrument of writing setting forth such closure."

Appellant subsequently purchased two lots from Barton and the same were enclosed by a fence which included the portion indicated on the map as an alley running through the block, and that fence has been maintained by plaintiff to the present time, or at least until it was broken and the premises entered by the officers of the city.

The question in the case is whether or not there has ever been a dedication of the land in controversy to public use.The language of the writing is peculiar.It contains an express dedication of the streets indicated on the plat, but as to the alleys it provides that they"shall remain open highways for the use of the owners of or residents upon the blocks through which they run, but the alley in any block may be closed at any time, by all owners of lots in any such block duly executing, acknowledging and placing on record in the recorder's office of Pulaski County, a valid instrument of writing setting forth such closure."At the time of the alleged dedication, we had in this State no statutory method of voluntary dedication of lands to public use as streets, alleys and other public places, but the General Assembly of 1901 enacted a statute requiring persons and corporations to file plats of land situated in any city or town with the recorder of deeds.Kirby's Digest, §§ 5523-4.

There are two classes of common law dedications, "express dedications and implied dedications," says Mr. Elliott in his work on Roads and Streets, volume I, section 133."In both express and implied common law dedications," continues the author, "it is necessary that there should be an appropriation of land by the owner to public use, in the one case by some express manifestation of his purpose to devote the land to the public use, in the other by some act or course of conduct from which the law will imply such an intent."The same author in another section of his work, (section 138), says: "It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to the public use.If the intent to dedicate is absent, then there is no valid dedication.The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner.The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent."

There have been many decisions of this court on the subject, and the rule expressed by Mr. Elliott is the one that we have steadily adhered to.Among other things we have decided that "An owner of land, by laying out a town upon it platting it into blocks and lots intersected by streets and alleys, and selling lots by...