City of Billings v. Pierce Packing Co.

• Decision Date: 19 April 1945
• Docket Number: 8490.
• Parties: CITY OF BILLINGS v. PIERCE PACKING CO. et al.
• Court: Montana Supreme Court

161 P.2d 636

117 Mont. 255

CITY OF BILLINGS v. PIERCE PACKING CO. et al.

No. 8490.

Supreme Court of Montana

April 19, 1945

Rehearing Denied Sept. 22, 1945.

Appeal from District Court, Thirteenth District, Yellowstone County Frank P. Leiper, Judge.

Action by the City of Billings against the Pierce Packing Company, a corporation, and another to enjoin defendants from encroaching on a street and require them to remove encroachments thereon. Judgment for plaintiff, and defendants appeal.

Affirmed.

Mere silence cannot work "estoppel", but, to be effective for such purpose, person estopped must intend to mislead or be willing to deceive another, who must be misled by such silence.

Wood & Cooke, of Billings, for appellants.

Melvin N. Hoiness and R. C. Dillavou, both of Billings, for respondent.

CHEADLE, Justice.

Appeal from a judgment restraining and enjoining the defendants from encroaching upon any part of North 13th Street in the city of Billings between blocks 122 and 123, as said street appears on the plat of the original town (now city) of Billings Montana; and ordering defendants to remove the encroachments on that portion of said street within sixty days from the entry of judgment.

The facts, so far as pertinent, are that on June 1, 1882, a plat of Billings, dated April 3, 1882, was signed and attested by officers of Minnesota and Montana Land and Improvement Co. certified by a surveyor that same was made by him from an actual survey, and filed and recorded in Custer county Montana. It was filed and recorded in Yellowstone county (later created) on September 1, 1884. The plat contains recitals that the streets and avenues are all of the uniform width of eighty feet and the alleys twenty feet; that the regular lots are precisely twenty-five feet in width and 140 feet in length; and that the irregular lots have their precise length and width plainly marked on their boundaries. Thereafter, and prior to 1915, certain fences, corrals and cattle pens, some with concrete slabs, were built as part of a packing plant, extending some thirty feet into and upon the westerly side of North 13th Street, which now obstruct the free passage and use by the public of that street. On the easterly side of the street fences encroach thereon about two feet. In 1916, the Yellowstone Packing Company, the then owner of the plant, rebuilt the fences and corrals, putting concrete floors in certain of the pens and alleys, and repaired the scale house, at an expense of about $3500.

On January 3, 1922, Yellowstone Packing Company, by letter (Pl. Ex. 5) addressed to the city council, contended that it had for more than ten years theretofore occupied about twenty feet of the westerly side of North 13th Street. In such letter that company offered to vacate that portion of the street so occupied by it adversely, upon thirty days notice by the city, if the city would vacate North 14th Street and the alleys in blocks 122 and 123. The city accepted such offer (Pl. Ex. 4) and by resolution and ordinance vacated North 14th Street and the alleys in blocks 122 and 123. No action was undertaken by the city toward removal of the encroachments until March 13, 1941, when the city clerk, by letter, requested the defendant company to remove its encroachments, and advised it that in the event of failure to do so legal action would be taken. Traffic on this street was light until September 1941, after which it became heavy and congested.

In March, 1936, Pierce Packing Company purchased the packing plant property, including the real estate described in the deed of conveyance as 'Block 123 and Lots 1 to 12, both inclusive, Block 122, Original Town (now city) of Billings, Montana, according to the plat.' The defendant company thereafter occupied the portion of the street in question and has refused to remove the encroachments therefrom. The evidence discloses that in 1939 defendant expended about $500 in repairing that portion of its plant encroaching on the westerly side of the street, and that to remove and replace same would cost in excess of $6000. The record owner of the plant real estate is J. B. Mills, but the actual owner is Pierce Packing Company.

Errors are assigned in nine specifications. For the purpose of argument appellant groups these as follows:

1. The demurrer to the amended reply should have been sustained and certain exhibits excluded as evidence.

2. The filing of the plat of the city of Billings unaccompanied by the certificate of dedication provided for by section 4985, Revised Codes, 1935, was a common law dedication and not a statutory one, and the city thereby acquired only an easement in North 13th Street, which easement was lost by abandonment.

3. Under the doctrine of equitable estoppel the city is estopped to compel the removal of the encroachments.

Appellants' argument that the demurrer to the amended reply should have been sustained and certain exhibits excluded, is based on the lack of allegation or proof that defendants had notice, actual or constructive, of plaintiffs' Exhibits 4 and 5, above referred to. By Exhibit 5, Yellowstone Packing Company, in addition to its offer to remove the encroachments, offered to (and after the acceptance of its offer by the city did) dismiss two pending actions for the recovery of encroachment taxes levied upon the property encroached upon and paid under protest. Neither of these exhibits, constituting the agreement between Yellowstone Packing Company and the city, were placed of record in the county clerk's office. The resolution and ordinance vacating 14th Street and the alleys in blocks 122 and 123 were recorded, but contained no reference to the agreement to remove encroachments on North 13th Street.

We think these exhibits are material to the determination of the case, as will hereinafter appear, and were properly admitted in evidence. Defendants refer to the agreement between the Yellowstone Packing Company and the city as a 'secret agreement,' and argue that because it was not placed of record in the county clerk's office, they had no notice of it, and therefore it is in no way binding on them. But regardless, defendants had at least constructive notice of the width of the street, as dedicated, and, therefore, of the encroachments upon it. The conveyance by which defendants acquired title described the property conveyed as 'Block 123, and lots 1 to 12, both inclusive, Block 122, original Town (now city) of Billings, Montana, according to the plat.' The plat was a part of the records of Yellowstone county, and was referred to in the deed for a particular description of the lots conveyed; by such reference it became, in effect, a part of the deed, and defendants will not be heard to say they had no notice of its contents.

In the recent case of Vaught v. McClymond, Mont., 155 P.2d 612, 616, this court said: 'When lands are granted according to an official plat of a survey, the plat itself, with all its notes, lines, descriptions and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.' Pittsmont Copper Co. v. Vanina, 71 Mont. 44, 227 P. 46; 26 C.J.S., Deeds, § 101, p. 373.

If defendants did not know, as they contend, that the width of the street was eighty feet, and was encroached upon, they could not have relied upon title by adverse possession, so it is difficult to understand how the so-called 'secret agreement' was material, or how they were injured by lack of notice of it. We think the demurrer to the amended reply was correctly overruled.

Defendants next contend that the dedication here involved was a common law dedication, whereby the city acquired only an easement in North 13th Street, which easement was lost by abandonment.

When the Billings plat was originally filed (1882) there was no Territorial statute governing dedication of privately owned lands to the public. Statutory provision for certificate of dedication was first enacted in 1895, as section 5005 of the Political Code of that year, re-enacted as section 4985, Revised Codes, 1935. Hence the filing of the plat of Billings constituted a common law dedication. Kaufman v. City of Butte, 48 Mont. 400, 138 P. 770; 16 Am.Jur. 400. Essential elements of a common law dedication are (1) an offer by the owner evidencing his intention to dedicate, and (2) acceptance on the part of the public. Kaufman v. City of Butte, supra; 16 Am.Jur. 399. Here the offer and intent to dedicate is clearly evidenced by filing of the plat (McQuillan, Municipal Corporations, 2d Ed., sec. 1687, page 736; Kaufman v. City of Butte, supra) and acceptance by general use. McQuillan, supra, sec. 1707. By a common law dedication the interest vested in the public is an easement. McQuillan, supra, sec. 1725; 16 Am.Jur. 402.

Appellants base their argument of abandonment on adverse possession of the portion of the street in question by it or its predecessors in title since prior to 1915, with costly improvements that cannot be removed without substantial loss; that such facts have been known to the city, without action being taken until the agreement with Yellowstone Packing Co. in 1922, which was not placed of record so that subsequent purchasers had notice thereof; that appellant had neither notice nor knowledge of the claims of the city to the disputed area until March, 1941; that appellants made costly improvements in the disputed area, which cannot be removed without substantial loss; that even after the unrecorded agreement in 1922, the city did nothing whatever to establish its claimed rights until this action was brought.

We think the weight of authority supports the...