Boise City v. Hon

• Decision Date: 10 February 1908
• Parties: BOISE CITY, Appellant, v. R. L. HON, Respondent
• Court: Idaho Supreme Court

94 P. 167

14 Idaho 272

BOISE CITY, Appellant, v. R. L. HON, Respondent

Supreme Court of Idaho

February 10, 1908

DEDICATION OF STREET-FILING PLAT-SALE OF LOTS WITH REFERENCE TO PLAT-DEED CONVEYING LOTS REFERRING TO PLAT-ACCEPTANCE-RIGHTS OF PUBLIC-UNAUTHORIZED TAXATION-NOT AN ESTOPPEL.

1. Where the owner of land plats the same into lots, blocks streets and alleys, and files such plat with the proper recorder of deeds, and sells lots therein with reference to such plat, he and his grantees are estopped from revoking the dedication of such streets and alleys.

2. A dedication of streets and alleys thus made is irrevocable and the dedicator and his grantees are precluded from exercising any authority over or setting up any title to the same unless they are abandoned by the public; and that is true whether there has been any formal acceptance of such streets and alleys by the public authorities or not.

3. The act of filing or recording such plat or map is sufficient to establish the intent on the part of the owner to make a donation of the same for public use.

4. The dedication of said streets was complete, and under such dedication the city, the representative of the public, had the right to take possession of and use them whenever the progress and development of the city should make it necessary to do so.

5. Under such dedication, it is not generally expected that the streets and alleys should all be opened at once, and the history of such transactions shows that many years might elapse before the settlement of the land so platted as a part of a city would be required on the part of the public for their use.

6. Arnold's offer of dedication was sufficiently accepted by the public when some of its members acted upon his offer and purchased lots with reference to the plat filed by him.

7. The practice in this state, as well as in others, of laying out additions to a city or town, filing plats thereof and selling lots by reference to and in conformity with such maps, is prevalent, and public policy requires that the legal consequence of sales under such conditions should be neither uncertain nor obscure.

8. The design and object of those who so plat tracts of land is that the streets and alleys so platted are intended to give increased value to the adjacent lots, and the dedication of such streets and alleys to public use cannot be withdrawn at the whim or caprice of the person who dedicates them, or his grantees.

9. Held, that Arnold's dedication is irrevocable and it does not require a formal acceptance on the part of the city to make it binding.

10. When town lots are sold and a deed of conveyance executed therefor, and such deed refers to a plat of record for a description of the premises conveyed, all the particulars appearing on the plat are to be regarded as expressly recited in the deed.

11. Streets and alleys are public property and exempt from taxation, and the assessor has no authority whatever to assess the same for any purpose whatever.

12. The unauthorized acts of an officer in assessing streets and alleys cannot impair the right of the public thereto, nor confer any right as to the ownership of such streets upon anyone paying such taxes.

13. Neither the city officers nor other public officer has any power to defeat the right of the public in property thus dedicated to public use.

14. Hesse v. Strode, 10 Idaho 250, 77 P. 634, distinguished.

(Syllabus by the court.)

APPEAL from the District Court of Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action in ejectment. Judgment for defendant. Reversed.

Reversed and remanded, with directions, with costs of this appeal in favor of the appellant.

C. P McCarthy and C. M. Kahn, for Appellant.

Where a party files a plat of land showing streets and alleys thereon, and sells lots and blocks and parcels of land with reference to said plat, he irrevocably dedicates said streets and alleys for public purposes, and it is not necessary for the city to accept said dedication either expressly or impliedly, nor is it necessary for said city to use said property for street purposes until conditions justify it. (Elliott on Roads and Streets, secs. 117, 118; 13 Ency. of Law and Pr. (Cyc.), 455 et seq.; Abbott's Municipal Corp., secs. 729, 730; City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924; Sanborn v. City of Amarillo (Tex. Civ. App.), 93 S.W. 473; Trustees v. City of Hoboken, 33 N.J.L. 13, 25, 97 Am. Dec. 696; City of Bayonne v. Ford, 43 N.J.L. 292; Weiss v. Taylor, 144 Ala. 440, 39 So. 519; Garvey v. Harbison-Walker Refractory Co., 213 Pa. 177, 62 A. 778; In re Normal School, 213 Pa. 244, 62 A. 908; Lins v. Seefeld, 126 Wis. 610, 105 N.W. 917; City of Mobile v. Fowler, 147 Ala. 403, 41 So. 468; Thorpe v. Clanton (Ariz.), 85 P. 1061; Rhodes v. Town of Brightwood, 145 Ind. 21, 43 N.E. 942; Meier v. Portland C. Ry. Co., 16 Ore. 500, 19 P. 610, 1 L. R. A. 856; Fulton v. Town of Dover (Del.), 6 A. 633; Shea v. City of Ottumwa, 67 Iowa 39, 24 N.W. 582; Gregory v. Town of Lincoln, 13 Neb. 352, 14 N.W. 423; Grogan v. Town of Hayward, 4 F. 161, 6 Saw. 498.)

"When a plat is referred to in a deed for a description of premises conveyed, all the particulars appearing upon the plat are to be regarded as expressly recited in the deed." ( Bartlett v. City of Bangor, 67 Me. 460; Fox v. Sugar R. Co., 109 Mass. 292.)

The acceptance of taxes or special assessments by the officers of Boise City would not defeat or take away from Boise City the irrevocable right acquired by such dedication. (Rhodes v. Town of Brightwood, 145 Ind. 21, 43 N.E. 942; Town of San Leandro v. Le Breton, 72 Cal. 170, 13 P. 405; Sanborn v. City of Amarillo (Tex.), 93 S.W. 473; Ellsworth v. City of Grand Rapids, 27 Mich. 256; Gillean v. City of Frost, 25 Tex. Cr. App. 371, 61 S.W. 345; Evans v. Blankenship, 4 Ariz. 307, 39 P. 812.)

Chas. F. Koelsch, and E. J. Frawley, for Respondent.

"Dedication is an appropriation of land to some public use made by the owner and accepted for such use by or in behalf of the public. It is either statutory or common law." (5 Current Law, 959.)

Our statute on the subject of laying out city and village lots and blocks and filing plats thereof, and dedicating the streets and alleys, was enacted in 1893. Prior to that time there was no statute on the subject; hence the dedication in question, if dedication at all, is a common-law dedication. To effect a common-law dedication three things are essential: (1) An intention to dedicate; (2) Offering to dedicate; and (3) There must be an acceptance. (9 Ency. of Law, 2d ed., 59; 5 Current Law, 961; Raymond v. Wichita, 70 Kan. 523, 79 P. 323; Town of Bethel v. Pruett, 215 Ill. 162, 74 N.E. 111; People v. Marin Co., 103 Cal. 223, 37 P. 203, 204, 26 L. R. A. 659.)

Boise City cannot claim by estoppel. A municipality can only acquire rights under an offered dedication by acceptance thereof, express or implied. (Prescott v. Edwards, 117 Cal. 298, 59 Am. St. Rep. 186, 49 P. 178; City of Los Angeles v. Kysor, 125 Cal. 466, 58 P. 90; 9 Ency. of Law, 2d ed., 65; Kelsoe v. Town of Oglethorpe, 120 Ga. 951, 102 Am. St. Rep. 138 (140), 48 S.E. 366; Hayward v. Manzer, 70 Cal. 476, 13 P. 141; Trine v. Pueblo, 21 Colo. 102, 39 P. 330; City of San Francisco v. Canavan, 42 Cal. 541; People v. Reed, 81 Cal. 70, 15 Am. St. Rep. 22, 22 P. 474; Wolfskill v. Los Angeles Co., 86 Cal. 405, 24 P. 1094; McLean v. Lewellyn Iron Wks., 2 Cal.App. 346, 83 P. 1082; City of Anaheim v. Langenberger, 134 Cal. 608, 66 P. 855.)

The fact that the city levied and collected taxes is not the only fact that estopped the city from asserting any right over this property, which was, by Dwight Arnold in 1881, sold to a private owner by warranty deed which was placed on record. During most of the time since 1881 it has been inclosed and used for residence purposes, of all of which the city and the public generally had knowledge. The evidence also shows that in 1906 the city purchased from Dwight Arnold a sixteen foot alley situated historically under the same conditions as the strip in dispute, and that Boise City negotiated with respondent Hon for the purchase of this property. To allow the city at this late day to completely reverse its attitude and thus to ignore private rights is to allow an injustice and a wrong that is contrary to all principles of right and equity. (Reuter v. Lawe, 94 Wis. 300, 59 Am. St. Rep. 892, 68 N.W. 955, 34 L. R. A. 733; Hesse v. Strode, 10 Idaho 250, 77 P. 634; City of Los Angeles v. Cohn, 101 Cal. 373, 35 P. 1002.) The levying and collecting of taxes alone is such conduct as will estop a city. (Simplot v. Dubuque, 49 Iowa 630.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an action in ejectment brought by Boise City, a municipal corporation, against Robert Hon to oust him from a strip of land which is described by metes and bounds in the complaint, and lies between blocks 1 and 20 in what is known as Arnold's Addition to Boise City.

The answer puts in issue many of the material allegations of the complaint, and avers that since the 18th day of April, 1905, defendant has been the owner of, and in the possession of, and entitled to the possession of, said premises, and that he and his grantors have been the successive owners of and in the possession, adversely to all the world, of said premises for more than twenty-eight years immediately preceding the commencement of this action, and that the plaintiff during all of said time had not any right, title, interest or easement in, to, on, over or across said described premises, or any part thereof, and prays that the plaintiff take nothing by its action.

The cause was tried by the court without a jury and findings of fact,...