Carr v. Hopkin

• Decision Date: 17 November 1976
• Docket Number: No. 4596,4596
• Citation: 556 P.2d 221
• Parties: Lee CARR, Appellant (Defendant below), v. Glenn HOPKIN and Helen Hopkin, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 221

556 P.2d 221

Lee CARR, Appellant (Defendant below), v. Glenn HOPKIN and Helen Hopkin, Appellees (Plaintiffs below).

No. 4596.

Supreme Court of Wyoming.

Nov. 17, 1976.

Gary P. Hartman, Basin, for appellant.

Robert A Gish of Zaring & Gish, Basin, for appellees.

Before GUTHRIE, C, J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Appellant prosecutes this appeal from an adverse judgment entered against him in district court which held him guilty of trespass upon appellees' lands and awarded judgment against him in the sum of $210.

All parties to this appeal owned property in an area known as Mecklem Acres Addition adjoining the Town of Basin, Wyoming. Appellant had remodeled a house in this area and because of trouble with the then existing waterline it appeared to be desirable that he cross certain lands enclosed and claimed by appellees. In some manner it came to appellant's attention that there was in existence an unofficial and unrecorded plat available in the county clerk's office which showed that this area had been platted, that the area of Cheyenne Street was within appellees' enclosure, and that by going down the center of Cheyenne Street appellant could lay a line to the place where the town had given its permission to tap. He requested permission from the town to lay the pipeline down this so-called street, but it would not grant permission.

Appellant then employed a surveyor, who staked a line down the middle of Cheyenne Street as it appeared on the plat, and without any notice or without asking or securing any permission from apppellees he took down the fence and commenced the digging of the ditch and laying of line. Appellees notified appellant to cease these operations and instituted a suit charging trespass, and sought an injunction to prohibit further trespasses. Appellees claimed the title to these lands by virtue of adverse possession. By his answer and throughout this entire proceeding appellant has relied upon the claim that the ditch which was dug and the pipeline which was attempted to be installed were within the area of Cheyenne Street, which plaintiffs had wrongfully enclosed because that street was the property of the Town of Basin or held in trust by it for the use of the public as a result of a common-law dedication to the town.

The area in dispute was enclosed by a fence in 1946 by appellees' predecessors in interest and has never, insofar as the evidence reveals, been used as a street or road either prior to its fencing or after that period and with no apparent assertion of any right to use this as a street by any person until appellant's activities in March 1974. It may be observed at this point that there is no claim or any assertion of a right-of-way by necessity for ingress or egress upon the part of the appellant, and it appears he does have an access road available to him. Nor is any claim asserted that appellant purchased these lands in reliance upon the so-called plat.

In 1958 Thane Baldwin, then county surveyor, delivered to the county clerk a plat of Mecklem Acres Addition, which had never been recorded and which he apparently found in his office. This has apparently been relied upon by the county assessor in making his assessments; and some persons in describing land which was conveyed in this area relied practive, and others described a universal practive, and others described land in this area not by lot number but by metes and bounds.

The record in this case is not clear as to the ownership of these lands on March 30, 1923, the purported date of the plat, although a certificate of purchase issued by the county treasurer on July 17, 1926, for delinquent taxes would indicate that these lands were assessed to Basin Land Company, which by deed acquired all of the lands lying within this addition from George T. Mecklem, the patentee; and insofar as this record reveals Basin Land Company did not convey these lands in question by lot description to any person. The inception of the appellees' title rests not in this company but in a tax deed by the county to North Side Markets, Inc., which thereafter, in 1945, conveyed these lands to Chapman, appellees' predcessor in title. Appellant's brief lists three allegations of error:

1. The Court erred in granting the Town of Basin's Motion for Summary Judgment.

2. The Court erred as a matter of law when it failed to find that there had been a common-law dedication of the Mecklem Acres Addition to the Town of Basin.

3. Damages awarded were too speculative and excessive.

The record clearly reveals no appeal from a summary judgment entered in favor of the Town of Basin on April 18, 1975. The only judgment from which any appeal was prosecuted as described in the notice of appeal filed August 15, 1975, is he judgment dated July 18, 1975, to which the Town of Basin was not a party. The Town of Basin is not mentioned in the caption of this notice of appeal. The notice was not served upon the town or its attorney; nor was any service of briefs made upon the town. The time for filing any such notice has long since expired. It is mandatory that notices of appeal be filed within 30 days of the entry of judgment, Bowman v. Worland School Distruct, Wyo., 531 P.2d 889, 891. Further, the failure to serve briefs upon the Town of Basin would make an appeal subject to dismissal under Rule 12(j) of the Rules of the Wyoming Supreme Court. Appellant, therefore, must be held to have acquiesced in the summary judgment by not pursuing any appeal therefrom and it is res judicata insofar as appellant and the town are concerned, In re Kokesh's Estate, Wyo., 360 P.2d 368, 371.

In beginning consideration of appellant's second asserted claim, there is one rule which proves decisive in our disposal. This court noted in Graff v. City of Casper, 73 Wyo. 486, 281 P.2d 685, 690, 52 A. L.R.2d 257, that the party asserting a right under a claim of dedication has the burden of proof; Littlefield v. Hubbard, 124 Me 299, 128 A.2d 285, 287, 38 A.L.R. 1306; Borough of Stockton, Hunterdon County v. Frabizio, 130 N.J.L. 12, 31 A.2d 43, 44. This involves proof of every necessary or material element, Cannon v. Putnam County, Fla., 75 So.2d 577, 579; Karb v. City of Bellingham, 61 Wash.2d 214, 377 P.2d 984, 986; 26 C.J.S. Dedication § 44, p. 489, n. 64.5. In his brief appellant recognizes two necessary elements to establish a commonlaw dedication when he says that it 'may be dedicated in the common-law manner by the showing of an intent to dedicate and an acceptance.' There must be intent of the owner to devote the property to a public use, which must be clearly and unequivocally shoon and must never be presumed, Simmons v. Perkins, 63 Idaho 136, 118 P.2d 740, 744; Laug v. Ottawa County Road Commission, 37 Mich.App. 757, 195 N.W.2d 336, 338; Security & Investment Co. of Oregon City v. Oregon City, 161 Or. 421, 90 P.2d 467, 472; 26 C.J.S. Dedication § 11, pp. 415-417; 23 Am.Jur.2d, Dedication, § 79, pp. 65-66; and there must be an acceptance, ...