Edmunds v. Plianos, 9226

• Decision Date: 05 February 1952
• Docket Number: No. 9226,9226
• Citation: 51 N.W.2d 701,74 S.D. 260
• Parties: EDMUNDS et al. v. PLIANOS et al.
• Court: South Dakota Supreme Court

Page 701

51 N.W.2d 701

74 S.D. 260

EDMUNDS et al. v. PLIANOS et al.

No. 9226.

Supreme Court of South Dakota.

Feb. 5, 1952.

Rehearing Denied Feb. 18, 1952.

John E. Walsh, James T. Goetz, and W. W. French, all of Yankton, for plaintiffs and respondents.

Slaughter & Brady, Yankton, Everett A. Bogue, Vermillion, for defendants and appellants.

SICKEL, Presiding Judge.

Plaintiffs contend that the area described as the south 12 feet of Log 7, Block 3, Lower Yankton, is a public alley, and ask that defendants be permanently enjoined and restrained from obstructing or interfering with their use of it. Defendant Plianos denies such claim and alleges that the area is his private property. Defendant Anderson disclaims any interest in the area. The circuit court entered judgment for plaintiffs and defendant Plianos appealed.

Block 3 has an alley 20 feet wide running north and south through the center. It is bounded on the south by Third Street, and on the west by Douglas Avenue. Each half of the block is divided into nine lots 44 feet by 150 feet. Lot 9 in the southwest corner of the block has a frontage of 150 feet on Third Street, and a frontage of 44 feet on Douglas Avenue. Lot 8 is north of Lot 9. The plat of this block was filed in 1865. In 1873 Walter A. Burleigh, the owner, conveyed to Mary Balmat the east half of the west third of Lots 8 and 9. The remainder of the two lots was similarly divided and conveyed to others, obviously for the purpose of providing frontage on Third Street which had developed into the principal business street of the city. Lot 7 formed the north boundary of Lot 8. Burleigh retained the title to the south 12 feet of Lot 7 until 1882 when he conveyed it to Charlotte Faulk, who in turn conveyed it to Josie T. Balmat in 1900. The latter conveyed that 12-foot strip to John Henry Balmat in 1902 and he conveyed it to Josie T. Balmat, his wife, in 1922. Thereafter Josie T. Balmat conveyed the 12-foot strip together with the irregular tract in Lots 8 and 9, referred to above, to various relatives in consideration of love and affection. A. D. Sorenson gathered the title to this strip from various owners and conveyed it, with the east half of the west third of Lots 8 and 9, referred to above, to defendant Plianos who now proposes to withdraw the strip from public use by virtue of his record title.

Appellant contends that: 'The assignments of error raise but one major question, namely, whether or not the plaintiffs and the public have gained a prescriptive right for purpose of public travel over the 12-foot strip of ground in question because of the acts or conduct of the defendant or his predecessors in interest, or because of their failure to act'. The questions presented are: 1. Does the evidence show an intent on the part of the owners of the 12-foot strip to dedicate it for public use as an alley? 2. If so was the intended dedication accepted by the public? Mason v. City of Sioux Falls, 2 S.D. 640, 51 N.W. 770; Larson v. Chicago, M. & St. P. Ry. Co., 19 S.D. 284, 103 N.W. 35; City of Watertown v. Troeh, 25 S.D. 21, 125 N.W. 501; Evans v. City of Brookings, 41 S.D. 225, 170 N.W. 133; First Church of Christ, Scientist v. Revell, 68 S.D. 377, 2 N.W.2d 674; Lacey v. Judge, 68 S.D. 394, 3 N.W.2d 115; Stannus v. Heiserman, 72 S.D. 567, 38 N.W.2d 130, 131.

In the case of Mason v. City of Sioux Falls, supra, [2 S.D. 640, 51 N.W. 773.] this court considered a case parallel to this one on the facts. There the owner of a tract of land platted it into lots and blocks in 1881, but no streets were laid out on the plat. The owner conveyed part of the land not platted, by metes and bounds so as to leave a strip of land 66 feet wide between the land conveyed and the land which was platted. The city passed a resolution to pave that strip as a street and to assess the property of adjacent owners for the cost. The action was brought to annul the assessment on the ground that the strip was not a public street. It was admitted that title to the strip was in McClellan but it was contended that by his acts he had dedicated to the city an easement in it for a public street. This court in its opinion by Corson, J., held: 'Among the methods of acquiring the right to the use of land for a street is that of dedication by the owner, either express or implied. In an implied common-law dedication, it is necessary that there should be an appropriation of land by the owner to public use by some act or course of conduct from which the law will imply such an intent. * * * It is true, an actual intent to dedicate the land to public use must be found to exist, but proof of user for a period much shorter than that required to show title by prescription may be sufficient to prove such intent and dedication. The extent and character of the use may furnish evidence of the intention to so dedicate'. Authorities reviewed. 'The leaving of a strip of land 66 feet in width by McClellan between his addition and the land of plaintiff; subdivising his westerly tier of blocks into lots facing the west; conveying a strip 66 feet in width between his two additions, in 1884; the laying out of Cooper's addition so as to leave 66 feet between that and his other property,--all tended strongly to show that he intended that 66-foot strip for the public use. These facts, followed by the evidence offered that the whole 66-foot strip had been used before and since 1881 as a public highway, with the knowledge of and without objection by McClellan, might have been taken by the jury to establish at least a prima facie case of a dedication'. Here also the title to the strip of land in question has at all times remained in the individuals and it has never been formally dedicated to public use. The issue is also whether an intent to dedicate the land to public use may be reasonably implied from the course of conduct of the various owners. Here, the owner subdivided Lots 8 and 9 into tracts facing south, leaving the 12-foot strip in the rear connecting Douglas Avenue with the north-south alley, which tends strongly to show that the owner intended this strip for public use as an alley. It is also the undisputed fact that no one now living can remember a time when this land was ever used for anything but a public alley, presumably with the knowledge of and so far as the record shows without objection from any of the owners until now.

The decision in the Mason case was applied and followed by this court in City of Watertown v. Troeh, supra. [25 S.D. 21, 125 N.W. 502.] There the issue was whether the evidence was sufficient to justify a finding to the effect that Johnson intended to dedicate the land as a public alley and also to establish that the municipal corporation had accepted the dedication. The land was a city block in Watertown with a platted alley through the center. The lots in the north half of the block were numbered from 1 to 14 commencing on the east at Oak Street. They extended from the public alley north to Dakota Avenue. Oak Street, the east boundary of the block, 'had developed into a better business street than had Dakota avenue' so the owner subdivided Lots 1 to 5 by lines running east and west instead of north and south and conveyed them, leaving a strip 12 feet wide in the rear of the subdivided lots 'for a public alley'. One of the owners closed the south end of the alley claiming that the reservation in the deeds did not tend to and did not convey to the public a right of way over the strip. This court held that although the deeds may have been insufficient to convey the strip to the public yet they 'clearly prove an intent on the part of Johnson to dedicate such strip for public use'. 'It is therefore clear that, considering the reservations in the deeds, the situation of these lots, the fact that Johnson had changed the platting, that to make this tract valuable for business purposes an alley at the rear of the tracts sold was important, that the south end of such strip would connect with the public alley, and the north connecting with a street opposite the end of another public street, there was ample to justify the jury and court in finding an intent on the part of Johnson to dedicate the strip for a public alley.'

The case of City of Watertown v. Troeh, supra, also disposed of the question of acceptance by the public saying: "The inhabitants of a locality having by long-continued use treated the way as a public one, they make it such without the intervention of those who derive their authority from them.' * * * In this case, where there was evidence sufficient to show intent [to dedicate] even exclusing all the evidence of user, and where it was shown that for some 18 or 19 years this tract had been openly used by the public, there was ample to prove an acceptance prior to the time defendant received his deed'.

Here as in the City of Watertown case the land also consisted of a city block with a platted alley through the center. The lots ran parallel with Third Street which had developed into a better business street than Douglas Avenue, and therefore the owner divided Lots 8 and 9 by lines running north and south instead of east and west as on the original plat, leaving a 12-foot strip at the rear of the lots for an alley. Here also the present owner, after the adjacent property has been improved and adapted to the use of the alley, proposes to close one-half of the alley reducing the remainder to a cul de sac. We may also say that the situation of these lots, the fact that the owners changed the frontage of the lots to make them more valuable for business purposes, and that the alley in the rear was therefore important as a means of access to the tracts so laid out, are persuasive on the question of intent to dedicate.

In the case of First Church of Christ, Scientist v. Revell, supra, it was held that the use of a driveway over church property was permissive, not adverse; that it was private, not public. The...