Syllabus
by the Court.
Where
under the facts in this case, a subdivision of land has been
platted into lots, blocks, streets, and alleys, and a portion
of the lots have been sold, a part of such addition cannot be
vacated, under section 924, Comp. Laws 1909 (section 522,
Rev. Laws 1910), without all the owners of lots in such plat
joining in the execution of a written instrument, as provided
by section 923, Comp. Laws 1909 (section 521, R. L. 1910).
Commissioners'
Opinion, Division No. 3. Error from Superior Court
Pottawatomie County; George C. Abernathy, Judge.
Action
by John Rain against Albert Clark. Judgment for plaintiff
and defendant brings error. Reversed.
RITTENHOUSE
C.
This is
an action brought by John Rain for the purpose of restraining
Albert Clark, as road overseer, from interfering with him in
closing certain streets in Barnard's addition to the city
of Shawnee, or from opening certain streets already closed.
The cause was tried on the following agreed statement of
facts:
"It is hereby stipulated and agreed in open court, the
plaintiff present in person and by counsel, W. F. Durham,
deputy county attorney, that the plaintiff, John Rain, is
sole owner of blocks 2, 3, and 4 of what has heretofore been
platted and recorded as Barnard's addition to the city of
Shawnee; that block 1 of said addition, as shown by said
plat, is owned by one Clay Barnard, and that the defendant,
Albert Clark, is road overseer; that heretofore, on the 8th
day of August, 1912, the plaintiff herein executed what may
be termed as a deed of vacation to said plat in so far as
said plat covered
blocks 2, 3, and 4 of Barnard's addition; said
Barnard's addition is now and always has been outside of
the city limits of the city of Shawnee, and is within the
limits of Davis township No. 2, road district No. 5; that the
plaintiff desires to fence said blocks 2, 3, and 4 in one
inclosure, and that said fencing will close the streets as
shown on the original plat of Barnard's addition, with
the exception of the street on the west and on the south side
of block 1; that there are regularly laid out public highways
on the east side and north side of block 1; that the
plaintiff has heretofore by his tenants planted a crop of
cotton on said blocks 2, 3, and 4, and the streets shown on
the original plat, to wit, between block 2 and block 3 and
between block 3 and 4; that the defendant, acting in his
capacity as road overseer of road district No. 5, through his
agents and servants, pulled up and destroyed said cotton crop
planted within the limits of the streets above mentioned,
between block 2 and block 3 and block 3 and block 4; that the
defendant has heretofore taken up and removed the posts which
the plaintiff had caused to be set in said streets heretofore
mentioned between block 2 and block 3 and block 3 and block
4, and will continue to destroy said crop and to take up and
remove said posts, and will, unless restrained by this court,
prevent the plaintiff from fencing said blocks in so far as
said fencing will block and obstruct said streets.
The plaintiff in open court waives right to damages in this
case, and thereupon both parties in open court, through their
counsel, agree that the stipulation heretofore dictated on
the records as a statement of facts and this hearing may be
treated by the court as a hearing for a perpetual injunction,
and that the stipulation heretofore dictated may be by the
court treated as a fact and for a hearing on the perpetual
injunction."
The
court, upon hearing the evidence, found that the plaintiff,
John Rain, was entitled to a perpetual injunction against the
defendant, Albert Clark, his agents, employés, and successors
in office, enjoining them from going in or upon the property
of the plaintiff, or upon the streets lying and being
situated between blocks 2 and 3, and between blocks 3 and 4,
of Barnard's addition.
It is
contended by plaintiff that since all the property in this
addition is owned by himself and Clay Barnard, and the latter
did not join in the written instrument vacating said plat
under section 923, Comp. Laws 1909 (section 521, Rev. Laws
1910), therefore section 924, Comp. Laws 1909 (section 522,
Rev. Laws 1910), controls in disposition of the matters
involved. Said section provides that any part of a plat may
be vacated under provisions and conditions of chapter 15
article 4, ...
