Conkling v. Village of Mackinaw City

• Decision Date: 25 April 1899
• Citation: 79 N.W. 6,120 Mich. 67
• Court: Michigan Supreme Court
• Parties: CONKLING v. VILLAGE OF MACKINAW CITY.

79 N.W. 6

120 Mich. 67

CONKLING v. VILLAGE OF MACKINAW CITY.

Supreme Court of Michigan

April 25, 1899

Appeal from circuit court, Emmet county, in chancery; Oscar Adams Judge.

Bill by Clinton L. Conkling, executor, against the village of Mackinaw City. From a decree for defendant, complainant appeals. Affirmed.

B. T. Halstead, for appellant.

Pailthorp & McCabe, for appellee.

MOORE J.

The complainant filed a bill to quiet the title to about 20 acres of land which defendant claims is a public park. From a decree dismissing the bill, complainant has appealed. The accompanying plats will aid in understanding the situation.

The circuit judge filed a written opinion, from which the following is taken:

"It appears that at an early day in the history of this part of the state one Edgar Conkling became imbued with the idea that a large city and commercial and manufacturing metropolis would come into existence, in the natural order of things, at the point where the village of Mackinaw City now stands. He was a speculator in real estate and, acting under this conviction, and seeing, or thinking he saw, large gains to be made in the enterprise, some time in the year 1854, or about that time, he took steps to purchase nearly all the land in the vicinity of the Straits, including the land in dispute in this case. Other parties became associated with him in the enterprise, and became owners of shares in the property. These owners, being desirous of establishing a city, to be called 'Mackinaw City,' there, on July 30, 1857, executed to said Edgar Conkling

RPT.CC.1899006170.00010

(Image Omitted) and Ashbury M. Searles what is called a 'deed of trust'; the trust being that the trustees, Conkling and Searles, or their successors, 'shall at their discretion lay off the whole or any part of said premises into lots streets, alleys, parks, and other proper arrangements for a town or city, *** and at their discretion to sell or barter the same, or any portion thereof, in any manner, and for such consideration, as they may deem proper,' and to make and hold all necessary papers, etc., and ratifying and confirming all their acts. Between this date, July 30, 1857, and September 30th of the same year, the trustees caused a survey and map of the proposed city to be made. This plat or map shows on its face a space on the north side, and next to the Straits, not laid off into blocks and lots and streets, but with marks indicating a pleasure ground, and marked, 'Old Fort Park, 20 acres,' being the ground in dispute in this case. The instrument of dedication attached to the map or plat, dated September 24, 1857, dedicates to the public use 'all the streets and avenues,' but does not mention the park. The trustees above named put forth and published a pamphlet containing this map or plat under the date of October, 1857, evidently for the information of prospective settlers and purchasers of lots at Mackinaw City, and intended to influence and induce people to locate there and purchase property. At this time, as I understand the testimony, there were no people residing at Mackinaw City, the whole tract covered by the plat being an unbroken wilderness. In this pamphlet, so published, the park is descanted upon as follows: 'The park now laid off embraces the grounds of the Old Fort Michelmackinac, sacred in the history of the country. These grounds, now in their natural condition, are unequaled for beauty of surface, location, scenery, soil, trees, etc., by any park in any city in this country; and when the skillful hand of the horticulturist has marked its outline, and threaded it with avenues and footpaths, pruned its trees, and carpeted its surface with green, it will present the very perfection of all that constitutes a park delightful. This park, with suitable blocks and lots for county and city buildings, market houses, schools, etc., will be duly appropriated to these uses whenever the proper authorities are prepared to select suitable sites; and lots for churches and institutions of learning and charity will be freely donated to parties contemplating early improvement. Thus the trustees propose to anticipate, by avoiding the errors of older cities, the wants of Mackinaw City in perpetuity, and free forever its citizens from taxation for any grounds required for public good.' The testimony taken tends to show it was the custom of Edgar Conkling, and also of Henry Conkling, who afterwards succeeded to the management of the property, to call the attention of those proposing to purchase to this park, take them to it, and point it out, and expatiate on its advantages to the people, and speak of it as an existing fact, for the public good, and in some cases justifying the large price asked for the lots by the liberality of the proprietors in giving the beautiful park, etc. It is claimed on the part of complainant in this case that the language above quoted from the aforesaid pamphlet shows that the trustees only made a conditional offer to dedicate the park; the condition being that the proper authorities should first 'select a suitable site.' I cannot agree with this contention. It seems to me that the trustees and proprietors not only offered and intended to give to the public at once the Old Fort Park as a place of recreation and pleasure, but also offered to give other lands-'suitable blocks and lots'-for the other purposes mentioned, as the necessity might arise from time to time; that is for 'county and city buildings, market houses, schools, etc.' As to the park, no selection of a site by anybody was necessary, as the proprietors had themselves most effectually selected and established its site and location. Consequently, the words 'select suitable sites' could not apply to the park, but only to the other purposes mentioned. I can come to no other conclusion than that the trustees and proprietors, in September and October, 1857, and for many years afterwards, offered unconditionally and presently to donate the park to the public of Mackinaw City as and for the usual purposes of a city park. As to the instrument executed by the trustees dated September 24, 1857, it is claimed on the part of complainant that it shows an intent to dedicate only the streets and avenues. I do not understand it in that way. It dedicates the streets and avenues, but says nothing about the park. I cannot see how it could be said to indicate an intent to dedicate only the streets and avenues, especially if taken in connection with the pamphlet and the other acts of the proprietors. On the whole, I am satisfied that the trustees offered unconditionally, and so intended, to dedicate the park to the public for park purposes. There are many cases which hold that the making of a plat with streets and avenues and parks designated thereon, and the sale of lots by reference to the plat, constitute an irrevocable dedication to the public of such public grounds; but I am not satisfied that such is the doctrine of the supreme court of this state. In this case it appears that the proprietors made a number of sales by reference to the plat, and at the same time represented the Old Fort Park as set apart for public use. I think such sales may be proved as acts in pais, to prove the intent of the proprietor to make the dedication. The said map and plat, and the

dedication of the same, appear to have been executed by the trustees, Conkling and Searles, and acknowledged before John G. Douglass, a commissioner for the state of Michigan residing in the city of Cincinnati, Ohio, under the seal of his office, and dated September 24, 1857, and was afterwards duly recorded in both Cheboygan and Emmet counties, in this state, the counties where said lands lie. It seems that this was not, in all respects, in strict compliance with the statute in relation to town plats. If, however, it was a sufficient compliance, then by the statute the fee of all the lands designated on such plat as laid out for streets, parks, and public grounds vested in the county, in trust for the use of the public for the purposes designated. If the curative statutes of 1850 would apply, then it would help this conclusion. If, however, there was not a valid statutory dedication, then I think the plat may operate as a common-law dedication, in which case the fee of the land would remain in the proprietors, but the use for the purposes designated would be in the public of the locality indicated. But there must be an acceptance by the public before the dedication would take effect. If in a village which is incorporated, and has a legal existence as a municipal corporation, the acceptance must be by the public authorities of such village. If, however, the public of the locality is not incorporated as a city or village, then I think the acceptance may be shown by acts in pais of the people of the locality; such as joining together with the concurrence of the proprietor in furnishing money by subscription, or doing work and labor with the intent to carry out the design of preparing the ground for the purpose of its dedication as a park. I think that in the case of an unincorporated village, as this was, no better mode of acceptance could be devised, and that it should be held binding. See Baker v. Johnston, 21 Mich. 346-351. In this case the proof tends to show that Edgar Conkling, while managing the property, sold lots according to the plat; that he joined with the people in fitting the grounds for public use in holding picnics and other public gatherings, which continued for several years. If the case depends on this alone, I think I should have to hold that such acts on the part of the inhabitants, acquiesced in by Mr. Conkling, would amount to sufficient acceptance of the dedication offered, and would be...