Beebe v. Little Rock

• Citation: 56 S.W. 791,68 Ark. 39
• Parties: BEEBE v. LITTLE ROCK
• Decision Date: 31 March 1900
• Court: Supreme Court of Arkansas

56 S.W. 791

68 Ark. 39

BEEBE v. LITTLE ROCK

Supreme Court of Arkansas

March 31, 1900

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Affirmed.

J. M Moore and Cockrill & Cockrill, for appellants.

The recital in the deeds passed between Beebe & Ashley and the city in 1843 that the city had previously accepted the plat and bill of assurances in satisfaction of the covenant is proof of that fact. 2 Pars. Cont. *512; 2 Devlin, Deeds § 845, p. 1134. No part of the property claimed here had ever been dedicated or recognized as a highway before the confirmation of the above mentioned deeds. Russell was not the owner, and therefore his attempted dedication was void. 42 Ark. 66, 68; Elliott, Roads & Streets. Beebe's covenant of 1838 did not refer to a dedication of streets and the evidence is not of the character to support such dedication. 2 Dill. Mun. Corp. § 639; 63 Ark. 5; 66 N.Y 261; 87 Ill. 64. The public had no interest in the rights which Beebe's covenant gave to those who claimed under deeds from the "original claimants." 19 N.J.Eq. 386, 393; 18 Mich. 56; 141 Ill. 89; 81 Cal. 70; 122 N.Y. 197, 214, and cases; 144 N.Y. 316, 326; 37 Mo. 13; 72 Mich. 234; 88 Mo. 155; Washb. Easments, *141, § 22; 21 Col. 1. If it were true that Beebe did dedicate the land bye the covenant of 1838, he had a right to withdraw the offer at any time before its acceptance by the city. Washb. Easements, 233, 208, 222; 27 Am. Dec. 564, n.; 124 Ill. 234, 242; 47 N.E. 191; 14 Mich. 12; 39 N.J.Eq. 465; 50 Ark. 53, 57; 58 Ark. 142; 59 Ark. 35, 39; 63 Ark. 5; Elliott, Roads and Streets, 113-114; 2 Smith's Lead. Cas. (Pt. 1), 140, 162 and cases; 88 Mo. 155; 2 Beach. Pub. Corp. § 1454; 72 Mich. 249; 14 Mich. 12; 81 Cal. 70; 67 Tex. 345; 18 Mich. 320, 346; 21 Cal. 1; 144 N.Y. 316, 326; 27 Am. Dec. 562, 563; 117 N.C. 733; 45 N.E. 1050; 37 N.E. 709; 100 Cal. 302; 53 Ark. 191, 194, 195; 2 Dill. Mun. Corp. § 629, and p. 742 n. As to character of acts required to constitute acceptance, see: 90 Am. Dec. 224; 144 N.Y. 316, 325; 141 Ill. 89, 104, 105, 108; 44 Mich. 468, 477, 478. An acceptance of a part of the streets laid out on a plat is not an acceptance of the whole. 47 N.E. 191; 141 Ill. 109; 14 Mich. 12; 31 Mich. 281; 47 Mich. 389; 75 Mich. 409; Angell, High. § 157; 68 Ia. 296; Washb. Eas. 239; 63 Ark. 5. If there had been both a dedication and acceptance, the city had the power to renounce its rights at any time before the actual opening of the streets and the acquisition of vested rights. 63 Ark. 5; 7 La.Ann. 270; 2 Dill. Mun. Corp. § 712n. and § 632; Ell Roads and Sts. 119. The presumption is that the council acted rightly. 50 Ark. 266; 31 Ark. 609; 73 F. 940, 945; 12 Wheat. 64, 70. If the lot owners were parties to this suit, none but abutters on the property in suit could be heard to complain. 37 N.E. 709; 82 Md. 77; 33 Md. 270; 151 Mass. 79, 81; 129 Mass. 167; 11 Allen, 5, 8; 19 N.J.Eq. 386, 394; 107 Ill. 600; 7 How. 185, 193; 50 Ark. 466, 474. The contract for the acceptance of the dedication having been fully executed on both sides, and the city still retaining the consideration received by it under the contract, it can not now be heard to assert that the act was ultra vires. 5 Thompson, Corp. §§ 6024, 6018; 47 Ark. 269, 284; 48 Ark. 254, 256; 1 Dill. Mun. Corp. §§ 444, 675; 2 Herman, Est. §§ 1178, 1222; 96 U.S. 312, 315; 96 U.S. 258, 267; 21 Kent, Com. 381; 64 F. 36, 44-7. Further, the city is estopped from denying the terms of its own contract of acceptance. 47 Ark. 317; 53 Ark. 514; 2 Dev. Deeds, §§ 997, 845; 2 Pars. 512; 60 Ark. 212; 18 How. 82; 11 How. 297; 2 Whart. Ev. §§ 1039, 1040. That the mayor was duly authorized by ordinance to make the release is proved by the recitals in the deed. 2 Wharf. Ev. §§ 1039, 1040; 1 Greenlf. Ev. §§ 23, 211; 73 F. 945, 950; S. C. 20 Ct. App. (U. S.) 122; 101 Cal. 522; 12 Wheat. 945, 950; Tied. Mun. Cor. § 196; 60 Ark. 212; 55 Ark. 289-90. The payment of taxes by Beebe, and acceptance of same by the city, estops the city. 164 U.S. 559, 577; 49 Ia. 630; 50 Ia. 164; 39 Ia. 507. The agreement to dedicate did not amount to a dedication. 7 Ark. 253; 48 Ark. 165; 51 Ark. 433; 33 Ark. 78. The city's laches in enforcing this contract bars its rights. 41 Ark. 45, 50; 2 Dill. Mun. Corp. § 675; 55 Ark. 148; 38 Ark. 81; 43 Ark. 180, 184; 164 U.S. 559, 576; 37 U.S. Ct. App. 220; S. C. 69 F. 116; 34 F. 701; S. C. 140 U.S. 634; 2 Perry, Tr. § 870; Newell, Ej. pp. 754, 755 and 759, § 68. If the land was ever a street, it reverted to appellants, on being abandoned by the city. 150 Mass. 174; Elliott, Roads & St. 670; 59 Ark. 66, 79; 12 Vt. 15, 20; 7 Wall. 290. If the property in suit were a public street, the plaintiffs, as owners of the fee, could maintain ejectment to remove obstructions. 24 Ark. 102; 50 Ark. 466; 2 Wall. 58.

Dodge & Johnson, and Carroll & Pemberton, (for Athletic Association); and Jno. W. Blackwood (City Attorney), for appellees.

The appellants are estopped to claim the property. The questions of fact in this case were fully considered and passed on in Martin v. Skipwith, 50 Ark. 141. The plat shows no north line to Water street. This plat must govern, though in conflict with the bill of assurances. Elliott on Streets & Roads, 111; 100 Ind. 463. Any fragments of land between the river and the street passed in the dedication, since no designation was made of them on the plat. 16 Wis. 19; 1 L.R.A. 856. It was ultra vires for the city council to attempt to renounce title in streets once dedicated. 31 S.W. 784; 50 Ark. 473; 51 Ark. 500; Elliott, Roads & Streets, 358; 7 B. Mon. 600; 1 A. K. Marsh. 9; 8 Dana, 50; 3 B. Mon. 437; 14 Pa.St. 186; 2 Dill. (U. S.) 70; 90 Mo. 259; 104 N.Y. 405; 29 Ia. 68; 23 Vt. 92; 1 Whart. (Pa.), 469; 12 Ill. 38; 41 F. 649. If this were not true, the facts of the contract of exchange relied on as estopping the city are insufficient, in that the parties clearly did not contemplate that this property was included in the exchange. 34 Me. 394; 50 Pa.St. 17; 103 Pa.St. 631; 10 C. B. 35. Nor did the act of its officers in receiving taxes on the land estop the city. 42 Ark. 121; 39 Ark. 580; 40 Ark. 257. Use of a street by the public, working of it by the authorities, etc., are evidence of acceptance. 58 Ark. 494; 62 ib. 408; 58 Ark. 142. Acceptance of part is acceptance of all of a street, as set out on the plat. 8 Am. & Eng. Eric. Law, 402, 403; Elliott, Roads, 115, 116. The city had the right to say when the street should be opened and worked. 58 Ark. 142. The city is not barred by laches. 50 Ark. 141. Appellants themselves are barred thereby. 17 F. 36. There is no land left between the north line of Water street and the highwater mark. The city has never abandoned these streets.

Jno. M. Moore, and Cockrill & Cockrill, for appellants, in reply:--A riparian owner takes to the water's edge. Gould on Waters, § 76; 7 Wall. 273; 53 Ark. 314.

S. R. Cockrill and J. M. Moore, for appellants, on motion to reconsider.

The officers of the land department could not impose conditions upon the issuance of Beebe's patent. 14 How. 377. The city can not repudiate its contract and retain the benefits of it. 47 Ark. 317; 53 Ark. 514; 48 Ark. 258; 32 Ark. 346. Even though the ordinance authorizing the city's deed is not in existence, its recital in the deed is sufficient evidence of it 1 Dev. Deeds, §§ 348a, 335; 161 U.S. 434, 442. By accepting the deed of Beebe & Ashley, the city agreed to its conditions and the consideration upon which it was executed. Dev. Deeds, § 997; 4 Pet. 1, 5; Big. Est. § 371. The city is bound by the recital, of the covenant, in the deed. 2 Pars. Cont. 512; 2 Dev. Deeds, §§ 845, 1134; 18 How. 82; 2 Whart. Ev. 1039-1040; 118 U.S. 256, 260; 60 Ark. 212; 58 Ark. 289, 290. When a street is bounded on one side by a navigable stream, the vendee of lots abutting on the street takes only to the center of the street, subject to the public use. 2 Wall. 57. The city cannot retain both the property and its price. 5 Thompson, Corp. § 6018; 12 C. C. A. 14, 22. Even in an ultra vires contract, there may be an estoppel, in whole or in part, based upon what has already been done. I Dill. Mun. Corp. §§ 444, 675. Public rights in a street may be lost by non-user. 41 Ark. 45; 2 Dill. Mun. Corp. §§ 667, 675.

Walter J. Terry and Jno. W. Blackwood, for appellees, on motion to reconsider.

Beebe was estopped from inquiring into Russell's title. For the judicial history of the title set up in this case, see 50 Ark. 147; 14 How. 377, 386; Hempst. 704. This court can take judicial notice of these facts. For many similar instances, see 45 Ark. 87; 37 Ark. 577; 6 Ark. 123; 4 Ark. 302; 27 Ark. 137; 28 Ark. 378; 34 Ark. 224; 16 Ark. 62; 61 Mo. 76; 70 Ia. 275; 21 Ind. 443; 16 Cal. 220; 50 Ala. 537; 93 Mo. 452; 107 Ind. 343; 13 Ct. Cl. Rep. 117; 67 Ga. 260; 18 La.Ann. 497; 49 Ark. 87; 31 L.R.A. 731; 32 id. 610; 45 Mich. 135; 56 Ind. 173; 23 Mo.App. 451; 51 Mo. 126; 107 Ind. 343; 78 Mo. 623; 61 Ind. 97. The public streets are trust property, and their trustees cannot sell or dispose of them, either directly or indirectly. 50 Ark. 473; 51 Ark. 500; 41 F. 649.

BUNN C. J. BATTLE, J., dissents. RIDDICK, J., dissenting as to North street.

OPINION

BUNN, C. J.

This cause originated in three several actions of ejectment, by the appellants, as the only heirs at law of the late Roswell Beebee. The first suit was against the city of Little Rock and the city Fuel Company, and W. L. Greet, to recover the tract of land in said city bounded on the east by Cumberland street, on the west by Main street, on the south by Water Street, and on the north by the Arkansas river. The second suit was against the city of Little Rock and Neimeyer & Darragh, for the recovery of the tract of land or lot in said city bounded on the...