Culmer v. Salt Lake City

• Decision Date: 10 February 1904
• Docket Number: 1479
• Citation: 27 Utah 252,75 P. 620
• Court: Utah Supreme Court
• Parties: H. L. A. CULMER, Respondent, v. SALT LAKE CITY, a Municipal Corporation, Appellant. THE UTAH STOVE AND HARDWARE COMPANY, a Corporation, Respondent, v. SALT LAKE CITY, a Municipal Corporation, Appellant

75 P. 620

27 Utah 252

H. L. A. CULMER, Respondent, v. SALT LAKE CITY, a Municipal Corporation, Appellant. THE UTAH STOVE AND HARDWARE COMPANY, a Corporation, Respondent, v. SALT LAKE CITY, a Municipal Corporation, Appellant

No. 1479

Supreme Court of Utah

February 10, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. W. C Hall, Judge.

Action by H. L. A. Culmer against Salt Lake City to restrain the collection of a special tax. Another action, involving the same questions of law and practically the same questions of fact, was commenced against the City by the Utah Stove &amp Hardware Company. The two cases were consolidated, tried and appealed together. From a judgment in favor of the plaintiffs, the defendant city appealed.

AFFIRMED.

George L. Nye, Esq., City Attorney, and Walter C. Shoup, Esq. Assistant City Attorney, for appellant.

Our contention is that the alleyway was impliedly dedicated to the public prior to 1879.

In an implied dedication there must of course be a unity of two elements: First, an intent to dedicate; second, an acceptance of the dedication. To make a highway by dedication there must be the assent of the owners of the land to its appropriation as a public highway, and its use by the public for such purpose, and for such a length of time, that the public accommodation and private rights might be materially affected by an interruption of the enjoyment. State v. Birmingham, 38 N.W. 121.

"The intention to which the courts give heed is not an intention hidden in the mind of the land owner, but an intention manifested by his acts." City of Indianapolis v. Kingsbury, 101 Ind. 201, 203; Lamar v. Clements, 49 Texas 347; City of Denver v. Clements, 3 Col. 484; Gamble v. St. Louis, 12 Mo. 617; Morgan v. Railroad Company, 96 U.S. 716.

"Any act of the owner clearly indicating an intention to dedicate the land for public use, and its acceptance by the public is sufficient." Brooks v. Topeka, 8 P. 392; Quinton v. Burton (Iowa), 16 N.W. 569.

"An acceptance (of a highway) may be implied from a general and long continued use by the public as of right." Elliott on Roads and Streets, page 117; Cook v. Harris, 61 N.Y. 448; People v. Loehfelm, 102 N.Y. 1; Green v. Elliott, 86 Ind. 53, 68; Steele v. Sullivan, 70 Ala. 589; Eureka v. Croghan, 19 P. 485; Reese v. Chicago, 38 Ill. 322; Morgan v. Railroad Company, 96 U.S. 716.

Messrs. Whittemore & Cherrington for respondent.

A preponderance of the testimony clearly shows that the strip of land in question in this case is not a public alley, there never having been an intent to dedicate it to public use by the owner. Niles v. Los Angeles, 58 P. Rep. 190; American and English Encyclopaedia of Law, Vol. 9, 2d Edition, page 36; Silver v. Spangler, 43 P. Rep. 617.

A dedication from user will not be presumed or implied unless the use has been adverse, continuous and uninterrupted for the required length of time which the defendants in this case by their pleadings admit should be twenty-one years. American and English Encyclopaedia of Law, Vol. 9, 2d Edition, page 42; 7th Century Law Journal, 123; Harkness v. Woodmansee, 7 Utah 227.

This was a private right of way over which the public acquired no rights. American and English Encyclopaedia of Law, Vol. 9, page 56, 2d Edition; Silver v. Spangler, 43 P. Rep. 617.

An alley kept in repair by the owner, and over which the owner exercises authority and control, although used by the public for many years, is not a public way. Brink v. Collier, 56 Mo. 160; White v. Bradley, 66 Mo. 254; Mayberry v. Inhabitants of Standish, 56 Maine 342; 2 Met. (Ky.) 98.

The fact that a road has been worked and repaired with the knowledge and consent of the owner even, is not sufficient to prove dedication; the intent to dedicate must otherwise appear. Hardy v. Hale, 61 Ill. 192.

To constitute a dedication there must have been a use by the public adverse and exclusive of the use and enjoyment of the property by the proprietor, and not a mere use by the public under and in connection with its use by the owner, and the dedication must be under such circumstances as to indicate an abandonment exclusively to the community, by the owner of the soil. Talbot et al. v. Grace, 30 Ind. 389; Irwin v. Dixon, 9 How. 10.

Acceptance is an essential element of dedication in a city having a regularly organized city government; user may constitute an acceptance of country roads not so directly under the control of any local board, and where the expense of keeping them up is comparatively light; not so in cities. City of Detroit v. Railroad Company, 23 Mich. 172.

The barring up of the alley rebuts any presumption of dedication that might exist. Angell on Highways, sec. 152 (3 Ed.).

McCARTY, J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

H. L. A. Culmer brought this action against Salt Lake City to restrain the collection of a special tax, and to have the levy and assessment of such tax declared illegal and void. Another action, involving the same questions of law, and practically the same questions of fact, was commenced against the city by the Utah Stove & Hardware Company. The two cases, by stipulation, were consolidated and tried together. After taking evidence, the trial court found the issues in favor of plaintiffs, and enjoined the collection of the tax, and from that judgment defendant has appealed to this court.

The record, in brief, shows the following facts: The tax mentioned was levied by Salt Lake City against certain property abutting on a certain alley, for the purpose of paving such alley. The alley was originally laid out and established as a private way, for the use and convenience of the parties owning the ground over which it passed, and extended from Second South street through block 70 of the City Survey to First South street. About 1879 the heirs of Emiline Free Young, who claimed to be the owner of the land fronting on, and extending back 100 feet from First South street, and over which land the alley passed, closed up that part of it. Other parties, who owned property abutting on the alley, and who claimed an easement in it, protested against the closing of the alley at this point. In order to avoid a threatened lawsuit, the parties who had thus closed 100 feet of the north end of the alley, as a compromise, opened up and extended the alley from where it had been closed to Commercial street, a street running north and south through the same block, viz., block 70. Neither the city nor the public in general, so far as the record discloses, took part or showed any interest in this controversy, which resulted in changing the course of the north end of the alley. One of the deeds to plaintiff Culmer of the land over which the alley passes contains the following clause or proviso: "Subject to a right of way [referring to the alley in question] for travel by wagon and foot passengers." A deed to plaintiff of another parcel of land contains the following proviso: "Subject to a right of way for use of all the owners of the land owned by the late Emiline Free Young; . . . said right of way runs with the land forever in favor of the heirs and assigns of said testatrix." Each of the plaintiffs herein, in order to keep the alleyway open for their own convenience and that of other parties owning property abutting thereon, in the construction of their buildings (business houses) on the land sought to be taxed, arched and built over the alley, leaving a space large enough for teams and wagons to pass through. Each of these parties also excavated and extended the basement of their buildings back under this alleyway. Therefore, the space both above and beneath the alley is, and for 13 years past has been, occupied and utilized by the plaintiffs. The plaintiff Culmer testified on this point, in part as follows: "The north side of the alley includes a number of buttresses and structures on the south of our inside wall. It takes in a permanent stairway, ventilator, and chute for the delivery of goods. We have a stairway leading from the archway down into our engine room. We have a coal chute right in the middle of the alley, leading into the coal bin. . . . The floor of the alley is 2x6 stuff nailed together on edge, resting on steel beams for bearings underneath the roadway." Respecting the use that has been made of the alley for the last 13 years, he testified as follows: "This alleyway back of my building has not been open continuously since 1889. We did not have much use for it ourselves in the summer time, and it was frequently closed for weeks. Closed by barriers being put across either one end or the other, padlocked sometimes, usually by my engineer, and I think it was closed up every year. I remember particularly in 1896 it...