Burchfield v. Town of Ruleville

• Decision Date: 07 March 1927
• Docket Number: 26274
• Citation: 111 So. 565,146 Miss. 570
• Court: Mississippi Supreme Court
• Parties: BURCHFIELD et al. v. TOWN OF RULEVILLE et al. [*]

111 So. 565

146 Miss. 570

BURCHFIELD et al. v. TOWN OF RULEVILLE et al. ^[*]

No. 26274

Supreme Court of Mississippi

March 7, 1927

Division A

1 DEDICATION. Law requiring filing plat with mayor and aldermen held inapplicable to proposed town site, where there was no corporate existence (Code 1892, section 2937).

Code 1892, section 2937, requiring map or plat and abstract of title to be filed with board of mayor and aldermen, held inapplicable to proposed town site, where there was no corporate existence at time plat was made and map filed.

2 DEDICATION. Plat filed and recorded held to constitute "dedication" of lot therein marked "City Square" (Code 1892, sections 4399, 4402).

Map or plat, filed and recorded in substantial conformity to Code 1892, sections 4399, 4402, held to constitute complete statutory dedication of lot marked "City Square" therein, as well as streets mentioned and alleys shown, to public use.

3 DEDICATION. Filing of additional plat by attorney in fact held not to render both second and original plats void.

Filing of additional plat by attorney in fact for original grantor held not to render both plats void, since, in so far as land was conveyed under plats, it was ratification of original map, and in no sense constituted a revocation.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.

Suit by Mrs. Johnnie Rule Burchfield and others against the Town of Ruleville and another. Decree of dismissal, and complainants appeal. Affirmed.

Affirmed.

Neil & Clark, for appellants.

The complainants here allege that the dedication of "City Square" was intended for the use of a courthouse. The defendant town of Ruleville claims that it was intended for city park purposes. On that main issue, this case is presented. The contention of the complainants is based upon well-known and understood facts, going to the intent of the dedicators at the time of the alleged dedication. That of the defendant town of Ruleville rests upon usage and custom deemed to have been fairly in contemplation in the minds of the dedicators at the time of the attempted dedication. For a statement of the governing principles of law, see 18 C. J. 48, 49, 72, 73.

It requires no flight of imagination to see that the square was intended "in fair contemplation" of the dedicator "under usage and custom" for courthouse purposes. "City Square" does not appear in the books, so far as we are able to find, and constitutes a name, legend or designation indefinite and insufficient in itself to dedicate for any particular purpose or use. Consequently, the purpose or use for which it was intended is subject to explanation by parol testimony just as in the case of any other written instrument. 18 C. J. 92.

This map fails as a statutory dedication under section 2924, Code of 1892. See also section 2937. There was no acceptance of the alleged offer to dedicate under the first map by statute or common law, and the same was revoked by the heirs at law of M. J. Rule.

In Sandford et al. v. City of Meridian, 52 Miss. 383, the court laid down the principle that a proposed dedication laid out in one map can be changed by a later map with the assent of previous vendees. The second map in the instant case, changing the first map and stating on its face that it was "intended to take the place of and be in lieu of" the first map, having been acquiesced in and recognized by the vendees of Charles V. Campbell, by the town of Ruleville and the public generally, any claims to a dedication subsequent to the filing of the second map must necessarily be based on the second map.

This map is signed by J. H. Rule, attorney in fact, and fails as a statutory dedication because no abstract of title was submitted, the name of the proprietor and all of them, as provided by section 4400, fails to appear. Emma Rule, one of the heirs of M. J. Rule, deceased, was a non compos mentis and wholly incapable of conveying her property through power of attorney or deed executed by herself. Consequently, even if J. H. Rule had acquired power to donate the land embraced in the second map to the general public under his power of attorney, it could not have been a binding gift or donation because Emma Rule was incompetent. 18 C. J. 42, paragraph 13; Bruce v. Seaboard Air Line, 41 So. 883; Bushnell v. Scott, 94 Am. Dec. 555; City of St. Louis v. Laclede Gas Light Co., 9 A. S. R. 334.

But should the court agree with the findings of the chancellor that the acts of the alleged dedicators of "City Square" in fact constituted a dedication of the same, it cannot be deemed "from usage and custom to have been fairly in contemplation" to dedicate for city park purposes as expressed in the decree of the court below. Hence, the real intent of the dedicators can be explained by parol testimony. See 18 C. J., cited above.

If the specific purpose for which the dedication is made fails or becomes impossible, the property reverts to the original donors. Gaskins v. Williams, 35 L. R. A. (N. S.) 603. Sunflower county has abandoned the property for the use dedicated, as shown by the answer filed; has admitted the failure and impossibility of that use and the title to "City Square" has, consequently, reverted to the complainants in this case. Rowzee v. Pierce, 75 Miss. 487, citing with approval Board of Education v. Edson, 180 St. 226.

Nor can the defendant town convert the property to city park purposes from courthouse purposes as intended by the dedication. Rowzee v. Pierce, supra. Nor can the same be used for purposes other than as dedicated, namely, for a school house. Ibid. Nor a public library. Jones v. Jackson, 104 Miss. 450.

Failure or impossibility of the purpose of the dedication amounts to an abandonment. 18 C. J. 123, 128. Consequently, the renting of the property to shows, the proceeds thereof being placed in the town treasury, and the letting of it for farming purposes constitute misuser and diversion by the defendant town.

After the map had been recorded, Mrs. Rule executed three separate deeds, conveying five lots by specific reference to this map. "City Square" shown on said map was never assessed for taxes nor were any taxes thereon ever paid. As to the effect of these facts, see City of Jackson v. Laird, 55 So. 41-42.

After Mrs. Rule's death, her immediate heirs, by specific reference to said map, conveyed eighteen lots; the appellants and those through whom they claim title conveyed twenty-eight lots by specific reference to the same map; in addition to other acts, the municipal authorities caused an official map of the town to be made, which was approved and recorded whereby the map caused to be made by Mrs. Rule was incorporated as an integral part thereof; and then the appellants and those through whom they claim title, by specific reference to this map, conveyed thirty-two lots.

Throughout the entire period the public limited only by the control and aid of the municipal authorities has made use of this square. For the law applicable to these facts, see Vick v. Vicksburg, 1 How. 379; Woodyear v. Hadden, 5 Taunt. 125; Briel v. City of Natchez, 48 Miss. 435; City of Meridian v. Poole, 40 So. 551.

Wherefore, we submit that there has been, by Mrs. M. J. Rule, a statutory dedication of "City Square." If not, there has been a common-law dedication by the appellants or those through whom they claim title, or if not that the appellants and those through whom they claim title are estopped from asserting the contrary. The block of land designated "City Square" was specifically dedicated to Sunflower county for courthouse purposes, though dedicated to public use. M. E. Church v. Hoboken, 97 Am. Dec. 696-98; Rowzee v. Pierce, 75 Miss. 859-60.

The word "city" immediately preceding the word "park" and immediately preceding the word "square" indicates more clearly an intention to dedicate for a public use. Archer v. Salinas City, 16 L. R. A. 146. See, also, Ramstad v. Carr, L. R. A. 1816B 1160; McAlpin v. Ry. Co., 1 A. & E. Ann. Cas. 452 and note; Cole v. Loan Co., 17 A. & E. Ann. Cas. 304 and note.

In conclusion, we submit that if the only question on this appeal was whether "City Square" could be turned over to the county for courthouse purposes, a negative answer would at once be forthcoming.

Chapman, Moody & Johnson and Herring & Wiley, for appellees.

In the appellant's brief it is contended that the law in force was not complied with when the first map was made and filed for record. This map was made and filed for record when the Code of 1892 was in effect and our contention is that sections 4399-4402 of this code are applicable to the making and the filing of the map. In the appellant's brief the contention is made that sections 2924 and 2937 of that code were applicable.

This contention is erroneous because, in the first place, there was no existing municipality at the time when this map was made and filed for record; and, in the second place, affirmative action by the mayor and board of aldermen was necessary.

As to the revocation or vacation of any portion of the first map by the second map, there is yet another fatal objection to such a contention. Even had Mrs. Rule, who caused the first map to be made, caused the second map to be made, it would not have had the effect of vacating all, or any part, of the first map. Section 4404, Code of 1892.

In other words whenever any city, town or village was laid out and the proprietor thereof caused a true map or plat thereof to be made and filed for record, in accordance with the provisions of sections 4399-4403, Code of 1892, it shall not be altered or vacated, in whole or in part, except in accordance with the provisions of the section hereinabove...