City Of Huron v. Wilcox

• Decision Date: 03 February 1904
• Citation: 98 N.W. 88,17 S.D. 621
• Parties: CITY OF HURON, Plaintiff and respondent, v. FRED M. WILCOX, Defendant and appellant.
• Court: South Dakota Supreme Court

17 S.D. 621

98 N.W. 88

CITY OF HURON, Plaintiff and respondent,

v.

FRED M. WILCOX, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. J. H. McCoy, Judge Affirmed W. A. Lynch Attorneys for appellant. A. B. Fairbank Attorneys for respondent. Opinion filed Feb. 3, 1904

FULLER, J.

In support of the complaint in this action to quiet the title to a piece of ground 25 feet wide and 70 feet deep, facing west on Wisconsin street, in the city of Huron, plaintiff offered in evidence a grant, bargain and sale deed executed to the city on the 23d day of July, 1893, by George W. Sterling and his wife, Mollie B. Sterling, in consideration of $1,200, the receipt of which is therein acknowledged. The covenants of seisin and against incumbrances are as follows:

“To have and to hold the said premises with the appurtenances to the said party of the second part, and the said parties of the first part for themselves and their heirs, executors and administrators, do covenant and agree to and with the said party of the second part that they are well seized in fee of the laud and premises aforesaid and have good right and lawful authority to sell and convey the same in manner and form aforesaid; and that the same are free from all incumbrances whatsoever except taxes for the year 1892, and it is hereby understood that said premises are deeded to said party of the second part for city hall purposes only, and further, that the said parties of the first part for themselves and their heirs and all and every other person claiming or to claim by, from or under him or them shall and will from time to time and at all times hereafter make and execute, or cause and procure to be executed all such further deed or deeds whatsoever for the further and more perfect assurance and confirmation of the said premises hereby granted with the appurtenances unto the said party of the second part as by him or them shall be required and the above granted premises in the quiet and peaceable possession of the said party of the second part against all persons claiming or to claim the same or any part thereof the said parties of the first part, their heirs, executors and administrators will warrant and forever defend except as aforesaid and only for the purpose herein mentioned.”

Claiming to be the owner of a reversionary interest under a deed executed to him by said Sterling and wife on the 23rd day of October, 1900, the defendant contends that the original transaction was a dedication to the city for a specified public use, and his counsel maintains that such trust estate was never accepted by the municipality, and the dedicators had the right of revocation when they executed the deed to his client.

According to all the authorities, dedication is the deliberate act by which the owner of real property, without remuneration, devotes the fee or an easement therein to the use of the public; and section 1299 of the Civil...