City of Belle Fourche v. Dittman

• Decision Date: 27 October 1982
• Docket Number: No. 13730,13730
• Citation: 325 N.W.2d 309
• Parties: CITY OF BELLE FOURCHE, a municipal corporation, Plaintiff and Appellee, v. Allen L. DITTMAN and Paula M. Dittman, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 309

325 N.W.2d 309

CITY OF BELLE FOURCHE, a municipal corporation, Plaintiff and Appellee, v. Allen L. DITTMAN and Paula M. Dittman, Defendants and Appellants.

No. 13730.

Supreme Court of South Dakota.

Argued Sept. 9, 1982.

Decided Oct. 27, 1982.

Jacqueline Marousek of Bennett & Main, Belle Fourche, for plaintiff and appellee.

Wesley W. Buckmaster of Stephens, Quinn, Carr & Buckmaster, Belle Fourche, for defendants and appellants.

DUNN, Justice.

Alan L. Dittman and Paula M. Dittman (appellants) appeal from a summary judgment granted the City of Belle Fourche (appellee) quieting title to certain streets located within the city limits. We reverse and remand.

Appellants are the record title holders of certain property in the Belle View Subdivision of the City of Belle Fourche, South Dakota. Some of appellants' property abuts what was originally platted as Riverside Drive and Third Avenue (now renamed Grant Street). Appellee brought this action to determine ownership of the streets when appellants demanded payment for appellee's placement of sewer lines within the original right-of-way of these streets. Appellants contend the streets had been legally vacated and thus the sewer construction by appellee amounted to a taking without compensation. Appellee denies this and contends the alleged vacation of these city streets is null and void.

In March of 1906, appellants' predecessors-in-interest prepared and recorded a plat of the Belle View Addition to the City of Belle Fourche, which included the streets referred to above. The statute in effect at that time provided:

When the plat or map shall have been made out and certified, acknowledged and recorded as required by this article, every donation or grant to the public, ... marked or noted as such on said plat or map, shall be deemed in law and equity a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes a general warranty against such donor or donors ... and the land intended to be used for the streets, alleys, ways, commons or other public uses in any town or city, or addition thereto, shall be held in the corporate name thereof in trust to and for the use and purposes set forth and expressed or intended.

R POL C 1903, Ch. 15, Art. 14, § 1494 (this statute has been recodified and remains in effect without substantial change at SDCL 11-3-12).

In 1907, all the landowners in the Belle View Subdivision filed a duly executed Declaration of Vacancy with the Register of Deeds for Butte County, South Dakota. The Declaration was executed pursuant to Ch. 16, Art. 1, §§ 1503 (now codified at SDCL 11-3-16), 1504 and 1505 (now combined and appear at SDCL 11-3-17), of the R Pol C of 1903. ¹ The Declaration sets forth a metes and bounds description of the area to be vacated. Apparently, included within the description are the streets in question in the case before us. The title question before us then involves the ownership of streets originally dedicated for public use in 1906 and allegedly legally vacated in 1907.

The threshold question addressed in this case is whether appellants' failure to submit findings of fact and conclusions of law, as requested by the trial court in this summary judgment action, deprives this court of jurisdiction of this appeal. SDCL 15-6-52(a) states: "Findings of fact and conclusions of law are unnecessary under ... 15-6-56 ...." SDCL 15-6-56 deals with summary judgment actions. Despite this statutory exception, appellee still contends the failure to comply with the trial court's request for such findings deprives this court of jurisdiction to hear the case. Wright & Miller, in discussing Rule 52(a) from which our statute SDCL 15-6-52(a) derives, point out that although findings may be helpful to appellate courts in summary judgment actions they are clearly not required under Rule 56 (SDCL 15-6-56). 9 C. Wright and A. Miller, Federal Practice and Procedure § 2575 (1971). We cannot find, and appellee does not cite, any authority for their novel proposition that failure to respond to a trial court's request for findings in a summary judgment action deprives an appellate court of jurisdiction. This, coupled with the knowledge that no genuine issue of fact exists in summary judgment actions, leads us to reject appellee's argument and conclude this court does have jurisdiction to hear the case at hand.

Appellants contend the trial court erred in concluding the mere filing of a plat pursuant to state law vests fee simple title to streets and alleys located therein. This court has stated:

Dedication is generally defined as the devotion of property to a public use by an unequivocal act of the owner that manifests an intention that the property dedicated shall be accepted and used presently or in the future. The intention of the owner to dedicate and acceptance thereof by the public are essential elements of a complete dedication. (citations omitted).

Tinaglia v. Ittzes, 257 N.W.2d 724, 728-29 (S.D.1977). Neither party disputes that the appellants' predecessors-in-interest intended to dedicate the streets and alleys in question to public use. The question presented is whether public acceptance, if required, was timely made.

Acceptance by the public was not required by statute until 1915 when what is now SDCL 11-3-6 ² was enacted. It requires the examination of plats and their approval by the governing body before they could be recorded. Appellee notes the statutory law in effect in 1906 when the streets in the Belle View Subdivision were dedicated did not require approval by the municipality. In effect, appellee contends the recording of this plat in accordance with what is now SDCL 11-3-12 dedicates the disputed streets and alleys to the public forever without the necessity of a public acceptance. We cannot agree with this interpretation.

While there appears to be a split of authority on the question of whether an acceptance is necessary in cases of statutory dedication where statutory approval is not required, we believe the better rule in this state is that an acceptance is necessary. In 1905, this court touched on the acceptance issue when it stated that "[c]onduct on the part of the owner that is clearly expressive of an intention to dedicate usually amounts to dedication, if acted upon by the public in a manner which clearly justifies the inference of an acceptance." Larson v. Chicago, M. & St. P. Ry. Co., 19 S.D. 284, 289-290, 103 N.W. 35, 37 (1905). Prior to that time, this court stated acceptance could be evidenced by use of the streets by the public. Mason v. City of Sioux Falls, 2 S.D. 640, 51 N.W. 770 (1892). While both of these cases dealt with common-law dedication, it is important to note that courts at that time "made no distinction between a common-law and a statutory dedication, except in vesting title in the corporation in certain cases of statutory dedication." Sweatman v. Bathrick, 17 S.D. 138, 160, 95 N.W. 422, 428 (1903) (citations omitted). Thus, we hold that, even though a statutory duty of acceptance was not imposed until 1915, intent by the owner to dedicate and acceptance by the public, in some manner, were essential elements of a complete dedication prior to that time. Accordingly, the mere filing of a plat without public acceptance does not vest fee simple title to streets and alleys in appellee, rather it is simply an offer to dedicate.

Appellants next contend that the offer to dedicate the platted streets was revoked by the filing of a Declaration of Vacancy before the public had accepted the offer. It is settled that land offered for public use cannot be revoked if it has already been accepted for public use. Atlas Lumber Co. v. Quirk, 28 S.D. 643, 135 N.W. 172 (1912). In the case at hand, there was no formal acceptance of the offer to dedicate and the record does not reveal any evidence of implied acceptance in the form of regular use of the streets in question by the public. In fact, the record is devoid of any evidence as to whether the streets were ever graded, surfaced or maintained. We conclude no formal or informal acceptance was made by the public before the Declaration of Vacancy was filed.

Revocation in this case turns upon the validity of the Declaration of Vacancy. Appellee argues the Declaration is invalid for several reasons. First, appellee contends the statutory procedures followed by appellants' predecessors-in-interest were not intended for vacating streets and, second, that vacating streets and alleys is prohibited by law. We address each argument in turn.

Appellee contends the appellants' predecessors-in-interest use of what is now SDCL 11-3-16 and 11-3-17 to vacate the property in question was improper in light of this court's holding in In re Mackrill's Addition, 85 S.D. 196, 179 N.W.2d 268 (1970). Appellee is apparently arguing that this method of vacating was improper because the appellants' predecessors-in-interest were attempting to vacate a street. We cannot agree with appellee's application of Mackrill, supra, to the case at hand. Mackrill, supra, involved an action to vacate a portion of a plat under SDCL 11-3-20 to 11-3-26. In fact, the petition was intended to vacate an existing street which the petitioner had previously sought unsuccessfully to abandon...