City of Lamoure v. Lasell
| Decision Date | 24 January 1914 |
| Citation | 145 N.W. 577,26 N.D. 638 |
| Court | North Dakota Supreme Court |
Appeal from an order of the District Court of LaMoure County overruling a demurrer to plaintiffs' complaint seeking to determine the rights of the city and other parties in the streets, alleys, and parks of a portion of Northern Pacific addition to the city of LaMoure, and to enjoin the defendants from obstructing, closing, and otherwise interfering with the streets, alleys, etc., in such addition, Hon. J. A. Coffey J.
Affirmed.
Lasell & Knapp, for appellants.
The demurrer of the defendants should have been sustained. The test as to whether a complaint can resist attack by demurrer is whether the demurring party could admit all there is in the complaint and still escape liability. Donovan v Allert, 11 N.D. 289, 58 L.R.A. 775, 95 Am. St. Rep. 720 91 N.W. 441.
Plaintiffs have mistaken their remedy. The nature of the action is determined by the prayer for relief. Where the facts as set forth by the pleader are in doubt, resort may be had to the prayer to ascertain what the pleader means or intends. 31 Cyc. 111; Gillett v. Tregange, 13 Wis. 472, 7 Mor Min. Rep. 432; Topping v. Parish, 96 Wis. 378, 71 N.W. 367.
The action seems to have for its object the quieting of title in the city, in the streets and alleys of N. P. addition to city. Such action is not proper, because abutting property owners own to the middle of the streets. Donovan v. Allert, 11 N.D. 289, 58 L.R.A. 775, 95 Am. St. Rep. 720, 91 N.W. 441.
Recitals of an instrument which are incorporated into a pleading are not averments, and tender no issue. Omaha Sav. Bank v. Rosewater, 1 Neb. (Unof.) 723, 96 N.W. 68.
Where a pleading is doubtful, after giving its language a reasonable construction, it should be resolved against the pleader. J. Thompson & Sons Mfg. Co. v. Perkins, 97 Iowa 607, 66 N.W. 875; Lampman v. Bruning, 120 Iowa 167, 94 N.W. 562.
All essential facts must be stated definitely, and not left to inference 1 Estes, Code Pl. 4th ed. pp. 166, 218; Moore v. Bessie, 30 Cal. 572; Hicks v. Murray, 43 Cal. 522; Elwood v. Gardner, 45 N.Y. 349; First Nat. Bank v. Laughlin, 4 N.D. 391, 61 N.W. 473; Jasper v. Hazen, 2 N.D. 401, 51 N.W. 583; Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492; 4 Enc. Pl. & Pr. 600; McConnoughey v. Weider, 2 Iowa 408; Miller v. Van Tassel, 24 Cal. 459; Baltzell v. Nosler, 1 Iowa 588, 63 Am. Dec. 466; Thompson v. Munger, 15 Tex. 523, 65 Am. Dec. 176.
In such an action it must appear from the complaint that plaintiff had some right, and that there had been a violation of such right. Emerson v. Nash, 124 Wis. 369, 70 L.R.A. 326, 109 Am. St. Rep. 944, 102 N.W. 921.
The law of this state does not permit plaintiff city to bring an action to quiet title. Milwaukee Trust Co. v. Van Valkenburgh, 132 Wis. 638, 112 N.W. 1083; Manning v. School Dist. 124 Wis. 84, 102 N.W. 356; Miller v. Bayer, 94 Wis. 123, 68 N.W. 869; Kliefoth v. Northwestern Iron Co. 98 Wis. 495, 74 N.W. 356.
Jones & Hutchinson, for respondent.
The city of LaMoure is the proper party plaintiff in this action, and has the right to maintain. It is interested in its streets, alleys, and parks, and in protecting the rights of the public in same. Methodist Episcopal Church v. Hoboken, 33 N.J.L. 13, 97 Am. Dec. 696; Lynde v. Budd, 2 Paige, 191, 21 Am. Dec. 84, and cases cited.
The platting and recording of an addition to a city, the use of such addition by the city, the keeping up of the streets and sidewalks therein by the city, constitute a complete dedication thereof to the public use. Corning & Co. v. Woolner, 206 Ill. 190, 69 N.E. 53; Clark v. McCormick, 174 Ill. 164, 51 N.E. 215.
The sale and conveyance of lots in a town or city, and according to its plat, imply a grant or covenant to the public that the streets and alleys shall be forever open to the public use, free from all claim of the proprietors. Cole v. Minnesota Loan & T. Co. 17 N.D. 409, 117 N.W. 354, 17 Ann. Cas. 304.
The proprietors of an addition to a city, after dedication and sale of lots, cannot, by mere declaration, vacate a part of such addition, and deprive the public of the use of the streets, etc., therein. Chrisman v. Omaha & C. B. R. & Bridge Co. 125 Iowa 133, 100 N.W. 63; State v. Leaver, 62 Wis. 387, 22 N.W. 576; Reilly v. Racine, 51 Wis. 526, 8 N.W. 417; Shea v. Ottumwa, 67 Iowa 39, 24 N.W. 582; Madison v. Mayers, 97 Wis. 399, 40 L.R.A. 635, 65 Am. St. Rep. 127, 73 N.W. 43; 36 Century Dig. § 1429.
The appeal in this case is from an order overruling a general demurrer to plaintiff's complaint, and is taken by two of the defendants, M. C. Lasell and Deitrich Suemper. We only give the material parts of the complaint, omitting the allegations relating to defendants who do not appeal, and which allegations in no way affect the remaining paragraphs of the complaint.
It is alleged first, that the city of LaMoure is a municipal corporation under the laws of the state of North Dakota. Paragraph 3 alleges that the plaintiff Finch is a resident citizen, elector and taxpayer of the city of LaMoure, and has been for a period of fifteen years, and that, among other property owned by him in the said city of LaMoure, are certain lots in block 46 of Northern Pacific addition thereto, and that his home and residence for himself and family are upon a part of the property described, and that he brings this action, not only for himself, but for and in behalf of others similarly situated in said city of LaMoure.
Paragraphs 4 and 5 contain similar allegations as to plaintiffs Deisem and Field, except that their property is in other blocks in the same addition.
Paragraph 6 alleges that, prior to May, 1883, one Wells was the owner of certain real estate, including that contained in Northern Pacific addition to LaMoure; that, at said time, it was contiguous to what was known as the town of LaMoure, a nonincorporated town, but composed of places of business and residences, and these were constituent parts of a village or town in which people made their homes and conducted their businesses; that said Wells, while said town was growing, and for the purpose of partaking in the advantages and reaping the benefits thereof, and enhancing the value of his property, and making sales to buyers, surveyed and platted a portion of his said real estate as a part of said town of LaMoure, in the usual manner, laying out lots, blocks, streets, and alleys, and designating a part thereof as a public park; that a plat of such survey was prepared by said Wells, and the addition was named Northern Pacific addition to LaMoure; that such plat designated all lots and blocks by number, streets and boulevards by name and number, and said park by name; that it was filed by said Wells as owner in the office of the register of deeds of LaMoure county, June 21, 1883, and, ever since that time, has remained of record without change or alteration, until an attempted vacation of a part thereof in the year 1910, referred to later; that, during all such times, said Wells and his successors in interest in said property have taken and received all benefits and privileges from said lands being so marked and described and platted, and used as such by the people of said town, now city. A copy of such plat is annexed and made a part of the complaint.
Paragraph 8 alleges that defendant Suemper is the owner of record of a part of the real estate included in said addition described in the vacation declaration later referred to, and made a part of the complaint.
Paragraph 10 alleges that the defendant Beeber is the owner of record of that part of the real estate in such addition described as tract 3, belonging to M. C. Lasell, in the vacation declaration; a copy of which is attached and made a part of the complaint; that said Lasell is the preceding owner of record, but that both Lasell and Beeber claim to have certain interests or title therein, the extent of which is unknown to plaintiffs.
In P 11, it is alleged that, subsequent to the filing of said plat of said addition, the owner proceeded to sell lots located therein, as designated in such plat, and for a period of about twenty-seven years he and his successors in interest have continued in the sale and disposition of portions of said tract in the form of lots, as shown on said plat, and with the streets, alleys, and parks of record, as designated in said plat; and that these plaintiffs purchased the property now owned by them, and described and situated in said addition, in view and relying upon said plat, and the streets, alleys, and parks thereon designated, and designation of streets, alleys, and parks; they had to these plaintiffs and others similarly situated a value, and that they parted with the consideration therefor.
Paragraph 12 alleges that, about the 5th of November, 1883, the village of LaMoure was duly incorporated under the laws of the territory of Dakota by the residents of the unincorporated town of LaMoure, and included therein was such addition, and that Wells, the owner thereof, joined and participated in such village organization.
Paragraph 13 alleges that, subsequent to the filing of said plat, and on the 5th of December, 1905, said village of LaMoure, as incorporated, was duly organized as a city under the laws of the state, and said Northern Pacific addition was included within, and was a part of such reorganization that there was never any protest to either the organization of the village of LaMoure or the city, or any objection made...
To continue reading
Request your trial