Cass County v. Banks

Decision Date27 October 1880
Citation44 Mich. 467,7 N.W. 49
CourtMichigan Supreme Court
PartiesCASS COUNTY v. BANKS and another.

To constitute a complete dedication, it must be accepted within a reasonable time, otherwise the offer to dedicate will be deemed withdrawn. Facts in regard to the pretended dedication of certain lands in the village of Cassapolis for county purposes considered, and held, that there had been no acceptance of such dedication.

Error to Cass.

Edward Bacon, for plaintiffs in error.

Howell & Carr, for defendants in error.

COOLEY J.

The plaintiffs in error brought suit in the circuit court to recover lands in the village of Cassopolis which were claimed under a dedication by the original proprietors for a public square. The case comes before us on a finding of facts by the circuit judge, upon which he ordered judgment for defendants. The following are the important facts: By an act to amend an act entitled "An act to provide for establishing seats of justice," approved March 4, 1831, it was provided among other things that the governor, with the advice and consent of the legislative council, should appoint three commissioners to re-examine the proceedings which had taken place in relation to the establishment of a seat of justice for the county of Cass, and to confirm the same, or to make a new location as the public interest, in their opinion, should require. The commissioners were authorized to accept donations of land, etc., for the use of the county; they were to report to the governor and file their decision with the secretary of the territory, and the governor was required thereupon to issue a proclamation announcing the decision and establishing the county seat agreeably thereto. Laws 1833, p 533; 3 Territorial Laws, 898.

Commissioners were appointed as contemplated by this act, and proceeded in the discharge of their duties. On the fifteenth day of November, 1831, E.B. Sherman, A.H Redfield, Ephraim McCleary, Abram Tietsort, Jr., and Oliver Johnson presented for record in Cass county a plat of the village of Cassopolis duly signed by them and acknowledged. On this plat were marked a great number of blocks and lots fronting on streets which crossed each other at right angles and at the intersection of two of which, named Broadway and State streets, a square 20 rods by 26 was marked and designated "Cassopolis public square." In the accompanying description this square was declared to be "designed for buildings for public uses," and a considerable list of lots was enumerated as "donated to the county to be disposed of by their agent." The register of deeds received this plat, but instead of copying it upon his records, as he should have done, he merely attached it by paste to a fly-leaf of one of the record books. Broadway and State streets were each six rods wide and they were opened and used as public highways across the square, thus dividing the public square into four distinct quarters with streets as boundaries on two sides.

While the subject of locating the county seat was in the hands of commissioners the proprietors of the village plat made offers in writing to donate 40 acres to the county provided the county seat should be located thereon. What action, if any, the commissioners took upon these offers is not found, but they reported in favor of such location, and on December 19, 1831, the governor issued his proclamation locating the county seat at a point on the plat which, as near as we can understand by the description, is at or near the center of the public square. 2 Territorial Laws, 810. Previous to March 31, 1831, the meetings of the board of supervisors of Cass county had been held at Edwardsburg, but on that day the board adjourned to meet at Cassopolis, after entering upon their record a resolution "that a jail be built at Cassopolis, the county seat."

On April 15, 1833, the supervisors called for further donations from the village proprietors, and in that year and the next deeds were made by Tietsort & Sherman conveying lots to the county, and subsequently by other proprietors. On the same day last mentioned the supervisors also designated a lot--not the public square--on which a jail should be built, and one was built accordingly and was used continuously by the county until 1853. In June, 1833, A.H. Redfield was made agent for the county to sell lots which had been received as donations, and many sales were made by him. In October, 1835, the board of supervisors voted to erect a court-house on a lot designated--not the public square--and one was erected and used until 1841, when a new one was built as hereinafter stated. August 7, 1839, the county commissioners of Cass county, who had succeeded to the rights and powers of the supervisors, for the nominal consideration of $6,000, gave a deed to Darius Shaw, Joseph Harper, Jacob Silver, Asa Kingsbury and A.H. Redfield of "all that certain tract or parcel of land in said village of Cassopolis; first, the public square and public grounds, with their privileges and appurtenances, for the uses and purposes for which said square and grounds were conveyed to said county," reserving the privilege to erect a court-house on the north-east quarter, and second, a large number of other lots which had been donated to the county as above stated. The deed was an ordinary deed of bargain and sale and contained the usual covenants. Simultaneously the grantees in this deed gave to the commissioners their bond in the penal sum of $12,000, conditioned as follows: "Whereas, certain village lots in said village of Cassopolis and certain sums of money were formerly given to said county of Cass by the original proprietors of said village and by others for the purpose of erecting public buildings in said village for the use of the county, and whereas, the said commissioners have this day given to us a warranty deed for a certain part of said village lots and property, and also one order upon the treasury of said county for the sum of $2,000: Now if we, the said Darius Shaw, Asa Kingsbury, Jacob Silver, Joseph Harper and Alexander H. Redfield shall erect or cause to be erected in said village within two years from the date hereof on such ground as the said commissioners shall select a court-house 54 feet in length, (etc., giving full specifications,) then this obligation to be void, otherwise to be and remain in full force and virtue." The court-house was completed in accordance with this undertaking, the north-east quarter of the public square having been designated as the location.

In 1853 a new jail was erected by the county on the same quarter of the public square with the court-house, and in 1860 a building for county officers was erected on the north-west quarter of the same square. These are all the public buildings which have ever been erected on the public square, and they left the south half of the square entirely unoccupied. When the county ordered the erection of the building for county officers on the north-west quarter of the square, the grantees in the deed from the county commissioners of August 7, 1839, protested against their action and notified the supervisors that the county did not own all of the public square, but their protest was not heeded. It will be perceived that this action took place 29 years after the plat was made, and after the square was dedicated to the public, if any dedication was made by that plat.

The condition of the square, then, in 1860 was this: The county had placed two public buildings on the north-east quarter and one on the northwest quarter. The other two quarters, which were separated from the occupied parts by streets, were not occupied by the county in any manner, nor does it appear that there was any proposition by the county to make use of them for any public purpose. A deed of the whole square had been given by the county commissioners to the parties who erected the court-house, but what idea respecting its ultimate disposition was in the minds of the parties at the time we are not advised. The uses for which the square was conveyed to the county were alluded to, as if they were to be observed and accomplished, but if the square was to be devoted exclusively to public buildings for county use and occupation, it seems a very idle and absurd thing to include it in the deed at all. The other lots conveyed were for the benefit and enjoyment of the grantees, to compensate them for their expenditures in erecting the courthouse, and a strong inference arises that some personal advantage to the grantees from the conveyance of the square was expected also, or at least was looked upon as possible. It may perhaps have been thought that only a part of the square would be required for public buildings, and have been...

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