Cole v. Minn. Loan & Trust Co.

• Decision Date: 19 June 1908
• Court: North Dakota Supreme Court
• Parties: COLE et al. v. MINNESOTA LOAN & TRUST CO. et al.

17 N.D. 409

117 N.W. 354

COLE et al.

v.MINNESOTA LOAN & TRUST CO. et al.

Supreme Court of North Dakota.

June 19, 1908.

Syllabus by the Court.

The statutes of this state, prescribing the method for dedicating real property to public uses, as well as easements therein for such purposes, are not and were not intended to be exclusive of the common-law method of dedication; nor do they abrogate the well-settled rule of implied dedication by estoppel in pais.

Section 3016, Rev. Codes 1905, which authorizes and empowers cities and villages to receive, by gift or devise, real estate for purposes of parks or public grounds, is not exclusive in its operation, and lands or easements therein may be acquired for such purposes by a common-law dedication thereof. The owners and proprietors of the town site of K. left a square in the center thereof, undivided into lots, and designated simply by the numeral “2.” The other blocks were divided into lots, and those blocks surrounding block 2 were platted into lots, facing toward said square. One of the proprietors of the town site had active charge of the sale of lots therein, and he represented to prospective purchasers that such square was and would remain a public square or park. Plaintiffs, in reliance thereon, and also upon like representations made by one C., who was also a partner in such town-site enterprise, purchased lots fronting on said square, and made valuable improvements thereon.

Held, that said acts and representations constituted a common-law dedication of such block as a public square or park.

Held, further, that defendants are estopped, by reason of such acts and representations, to deny that said block 2 has been dedicated to the public for the uses aforesaid.

An intention to dedicate property to a public use must be clearly established, but such an intention may be shown by deed, by words, or by acts. Construing the testimony in the light of such rule, it is held that the intention of the proprietors of the town site to dedicate said block to the public is clearly established.

The rule regarding dedication by estoppel with reference to streets applies equally to public squares and parks.

Appeal from District Court, Ward County; J. F. Cowan, Judge.

Action by Percy M. Cole and others against the Minnesota Loan & Trust Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.Barnett & Richardson, Burke & Middaugh, and Francis J. Murphy, for appellants. David R. Pierce and L. W. Gammons, for respondents.

FISK, J.

This litigation arose in the district court of Ward county, and the case is here for trial de novo. The appeal is from a judgment in plaintiffs' favor, adjudging that block 2 of the original town site of the village of Kenmare in said county in said county is and shall ever remain a public square, park, and common, and forever enjoining defendants and their heirs and assigns from in any manner interfering with or preventing the full, free, and unobstructed use by the public of said property as a public square or common, and also adjudging that plaintiffs recover their costs and disbursements of the action. Plaintiffs are residents and taxpayers of said village, and the owners of lots fronting upon said block, and they instituted the action in their own behalf, for the benefit of themselves and all other residents and property owners of said village, for the purpose of obtaining the relief awarded to them by the trial court. The respondents contend in brief that they are entitled to the relief aforesaid, upon the grounds, first, that said block was, long prior to the commencement of this action, dedicated to the public by a common-law dedication; and, second, that defendants by their conduct are estopped to deny that said block is a public square, park, or common. If either of these contentions is sound, the judgment must be affirmed, otherwise it should be reversed.

We deem it advisable to call attention, first, to the issues as framed by the pleadings. The complaint, in substance, alleges the following facts:

(1) That the defendant Minnesota Loan & Trust Company is a corporation, organized under the laws of the state of Minnesota, and the defendant the Kenmare Security Bank is a corporation organized under the laws of this state.

(2) Plaintiffs are residents and taxpayers of said village of Kenmare, and the owners of real estate fronting upon the square or block in question, and this action is brought for the benefit of each of the said plaintiffs, and of all residents and taxpayers of said village.

(3) That on November 26, 1900, one Crane received from the United States a patent conveying to him the N. E. 1/4 of the N. E. 1/4, and lot 5, in section 19, township 160, range 88, and that, on or about March 19, 1897, said Crane and wife conveyed said property by warranty deed to the defendant the Minnesota Loan & Trust Company, which deed was recorded in the office of the register of deeds of said county, on March 25, 1897.

(4) On January 12, 1901, said Crane and wife by quitclaim deed conveyed to the Minnesota Loan & Trust Company all their right, title, and interest in and to said real estate, which deed was recorded on January 21, 1901, in the office of the register of deeds of said county.

(5) That on or about May 8, 1897, said Minnesota Loan & Trust Company, being the owner and proprietor of said real estate, caused to be surveyed and platted into squares, blocks, lots, streets, and alleys a portion of said real estate; that said land was so platted under the title of “Kenmare,” and said plat was duly filed in the office of the registerof deeds of said county on May 15, 1897, and duly recorded in Book A of Plats at page 14; that in said plat a portion of said land, 300 feet square, was designated by the numeral “2,” and said square was not subdivided into lots. The blocks on the different sides of said square were subdivided into lots, so arranged that the front of said lots faced said square.

(6) That said plat was in all things executed in accordance with the laws of this state. Plaintiffs allege that said square marked “2” on said plat was intended by said proprietors, as a public square and common, for the use and benefit of the plaintiffs and all the residents of Kenmare, and that said proprietors did by their acts, as aforesaid, dedicate to the public said square, and all the streets and alleys appearing on said plat.

(7) That on January 15, 1901, said trust company by deed of warranty conveyed, or attempted to convey, to defendant Cassedy the above-described real estate, including the said town site of Kenmare, which deed was duly recorded.

(8) That on August 18, 1902, Cassedy conveyed, or attempted to convey, by special warranty deed, to the defendants Tolley and Smith, the W. 1/2 of said square, marked on said plat with numeral “2,” which deed was duly recorded in the office of the register of deeds of said county, and on September 13, 1902, Cassedy by a similar instrument conveyed, or attempted to convey, to defendant bank the E. 1/2 of said square, which instrument was duly recorded in the office of the register of deeds.

(9) That on August 28, 1902, Smith and his wife conveyed, or attempted to convey, to defendant Winfred W. Smith by warranty deed an undivided 1/2 of said interest of said W. 1/2 of said square, marked “2,” as aforesaid, which deed was duly recorded.

(10) That the W. 1/2 of the N. W. 1/4 of section 20, township 160, range 88, adjoins said town site of Kenmare on the east side thereof, and a patent from the United States was duly issued therefor, on April 1, 1899, conveying said land to one Stanley, and on January 16, 1899, Stanley conveyed said land to one Clark D. Smith by quitclaim deed.

(11) On April 21, 1899, said Clark D. Smith caused said last-described real estate to be surveyed and platted into blocks, lots, streets, and alleys under the name of “Tolley's Plat of Kenmare,” which plat was duly executed and certified, and duly recorded; that said Clark D. Smith and wife, on October 18, 1900, conveyed by warranty deed a large portion of said real estate so platted to one Milburn Sandefur.

(12) That on or about July 12, 1901, defendant Cassedy caused to be surveyed and platted the balance of the tract of land hereinbefore first described, as blocks 11 to 17, inclusive, of the town of Kenmare; that thereafter said Cassedy conveyed a large portion of said land included in said last-described plat to said Milburn Sandefur by deed of warranty.

(13) During the times herein mentioned, defendant Tolley caused to be surveyed and platted 80 acres, embracing 28 blocks, lying immediately north of the plats hereinbefore described, and known as “Tolley's First Addition to Kenmare,” which plat was duly recorded.

(14) That all the lands embraced in the several plats herein described are now within the limits of the village of Kenmare.

(15) That ever since the making of the first plat above described, defendants Tolley, D. W. Cassedy, and W. T. Smith have each been authorized to sell lots within the town site of said Kenmare, and each had a proprietary interest in said town site during said time, including said square marked “2,” and that all the lots in the vicinity of said square have been sold by said defendants, and purchased by the plaintiffs and others with reference to said public square, and with express representations by the owners thereof that said square was and should at all times remain and be maintained as a public square and common, for the use and benefit of these plaintiffs, and other residents of Kenmare, and said square has at all times been considered and understood to be a public square and common by the residents of said Kenmare, and has been thus treated, at all times, with the full knowledge and consent of the owners thereof; that moneys have been raised by subscription from these plaintiffs, and other residents of said Kenmare, for improving and beautifying said...