Davies v. Epstein

• Citation: 92 S.W. 19
• Parties: DAVIES v. EPSTEIN.
• Decision Date: 02 December 1905
• Court: Supreme Court of Arkansas

Page 19

92 S.W. 19

DAVIES v. EPSTEIN.

Supreme Court of Arkansas.

December 2, 1905.

Appeal from Chicot Chancery Court; Marcus L. Hawkins, Chancellor.

Action by Sam Epstein against Walter Davies. Decree for plaintiff, and defendant appeals. Affirmed.

This is a suit in equity brought by appellee, Sam Epstein, against appellant, Walter Davies, to restrain the latter from erecting a building on the sloping bank of Lake Chicot, between the town of Lake Village, as laid out and platted, and the water's edge. The tract of land fronting on the lake (then known as Old River Lake) on which the town of Lake Village is situated, was originally owned by John Summers, who, on July 8, 1856, laid out and platted the town, caused the plat to be recorded, and thereafter sold lots according to the descriptions on the plat. The plat shows a street 50 feet wide running north and south, parallel with the lake front and abutting thereon. This street is denominated on the plat "Front Street," and other streets are laid off on the plat running west at right angles. The plat does not show the meander line of the lake, but the words "Old River Lake" appear thereon immediately in front of the street, indicating the situation of the lake and that Front Street abutted thereon. The front section of the plat is shown below.

Another survey and plat was made a short time before the commencement of this suit, showing an irregular meander line of the lake front. By action of the water in washing away the top of the bank, the same has become more sloping, and by this process, as well as by recession of the waters of the lake, the space between the top range of the slope or bank and the water's edge has been widened. It is also shown that at present the top range of the bank or slope is only 10 to 20 feet from the front of the west line of Front street, thus leaving only that much of the street as originally platted clear of the top range of the slope, and that the street as now used by the public encroaches upon the fronts of the lots abutting thereon. The plaintiff is the owner of lot No. 49, according to the plat, and has a building thereon used as a hotel, and the defendant began the erection of a building in front of plaintiff's lot, near the water's edge and 9 feet east of the original platted east line of Front street. This suit is brought to prevent the erection of the building by defendant, on the alleged ground that Summers, the original owner, dedicated the water front to the public, and that the plaintiff will suffer special injury by reason of the obstruction of his frontage on the open lake. The defendant denied that any land east of Front street was dedicated to the public use by Summers; set up title in himself to the land under mesne conveyances from Summers and by adverse possession for more than seven years. The conveyances from Summers, under which defendant claims title, describe all of the original tract of land except that part covered by the town of Lake Village. Other facts deemed important to state are mentioned in the opinion. The court rendered a decree in

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

favor of the plaintiff, perpetually enjoining the defendant from erecting the building on the land in question, and the defendant appealed.

James R. Yerger and Robinson & Beadel, for appellant. John G. B. Simms, for appellee.

McCULLOCH, J. (after stating the facts).

The primary question presented for our consideration is whether Summers, the original owner, dedicated to the public use all the land on the lake front east of the platted lots and blocks, for in no other way does the plaintiff claim any right to prevent the defendant from occupying the land on which he is about to build. An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and by selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. 13 Cyc. pp. 455, 456, 457, and cases cited; Elliott on Roads & Streets, § 117. He will also be held to have thereby dedicated to the public use squares, parks, and other public places marked as such on the plat. Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145; Bayonne v. Ford, 43 N. J. Law, 292; Rhodes v. Brightwood, 145 Ind. 21, 43 N. E. 942; Pierce v. Roberts, 57 Conn. 31, 17 Atl. 275. The fact depends upon the intention of the owner to dedicate to the public, as clearly and unequivocally manifested. It is held, however, that "the intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts." 13 Cyc. p. 452, and cases cited; Elliott on Roads & Streets, §§ 124, 156. It becomes, therefore, a question of fact in this case to determine whether the owner dedicated the land in controversy.

We think it is clear from an examination of the plat filed by Summers, that he intended to dedicate to the public use all the land between the front tier of lots and the bank of the lake. The plat shows no intervening space between Front street and the lake. The lake was then and is now a navigable body of water and, manifestly, he did not intend to cut the town off from access to the water. Yet, unless the conclusion is reached that he dedicated this strip, the effect will be to entirely cut off access to the water, as there are no streets or ways laid off on the plat from Front street to the water's edge. It is inconceivable that the owner intended to lay out a town on the banks of a navigable water and to parallel the bank with a street, and at the same time entirely cut it off from access by the public. This is contrary to reason, and to the obvious intention of the owner in selecting the site for the town. Under such circumstances a presumption necessarily arises of a dedication that will give the public access to the water.

In the case of Village of Wayzata v. Railroad Co., 50 Minn. 441, 52 N. W. 914, the court said: "Where the grant or dedication to the public is for the purpose of passage and goes to the water, the conclusion — there being no indication of a contrary intention — is inevitable that the grant or dedication was intended to enable the public to get to the water for the better enjoyment of the public right of navigation." See, also, Mayor, etc., v. Morris Canal Co., 12 N. J. Eq. 543; Barclay v. Howell, 6 Pet. ...