Evans v. Blankenship

• Decision Date: 09 March 1895
• Docket Number: Civil 433
• Citation: 39 P. 812,4 Ariz. 307
• Parties: JOHN M. EVANS, Plaintiff and Appellant, v. J. W. BLANKENSHIP, Defendant and Appellee
• Court: Arizona Supreme Court

39 P. 812

4 Ariz. 307

JOHN M. EVANS, Plaintiff and Appellant, v. J. W. BLANKENSHIP, Defendant and Appellee

Civil No. 433

Supreme Court of Arizona

March 9, 1895

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. R. E. Sloan Judge.

Affirmed.

W. H Stilwell, for Appellant.

"Unless there appears an actual intent to dedicate on the part of the owner, the court cannot do otherwise than find that there was no dedication." Hogue v. City of Albina, 20 Or 182, 25 P. 388.

Assent on part of owner must clearly appear. Marcy v Taylor, 19 Ill. 634.

Must be unequivocal. President v. Indianapolis, 12 Ind. 620; Harding v. Jasper, 14 Cal. 642; Holdane v. Cold Spring, 21 N.Y. 477; Quinn v Anderson, 70 Cal. 456, 11 P. 746; Hogue v. City of Albina, 20 Or. 182, 25 P. 386.

Others must have acted in reference to and upon the faith of the acts from which dedication is claimed. Oswald v. Grenet, 22 Tex. 94; Heirs of David v. New Orleans, 16 La. Ann. 404, 79 Am. Dec. 586; Connelian v. Ford, 9 Wis. 221.

"Parties are not to be done out of their property by doubtful implications, no matter how much the public may be inconvenienced." Cerf v. Pflegling, 94 Cal. 131, 29 P. 417.

Selling lots by unrecorded map gives no public right; only individuals can complain. People v. Reed, 81 Cal. 70, 15 Am. St. Rep. 22, 22 P. 474; Village of Grandville v. Jenison, 86 Mich. 567, 49 N.W. 544.

Selling lots according to a map showing vacant lots, not referring to it as a "common," vests no rights. Oswald v. Grenet, 15 Tex. 123; Cerf v. Pflegling, 94 Cal. 131, 29 P. 417.

Plaintiff in this case deraigns title through the probate court, not by deed from David Neahr, whose death in March, 1884, terminated all acts or intention on his part. See Archer v. Salinas City, 93 Cal. 16, 28 P. 839, for distinction made on above point.

The question of private rights does not enter into this case. Defendant does not attempt to show that David Neahr ever sold any lot in Neahr's Addition, described by deed or word as adjacent to any "park or square or common"; that any extra price was ever charged for such property; that any person ever purchased any lots by reason of any such representation. There is no showing that either Neahr, the city, or others ever attempted to use or improve such property as a park, square. or common, or otherwise. Village of Fulton v. Mehenfeld, 8 Ohio St. 440; Town of Van Wert v. Board of Education, 18 Ohio St. 221.

The premises in question were not within the corporate limits of the city of Phoenix until March 11, 1885. (Act No. 61, Laws 1885, p. 101.) Livermore v. City of Maquoketa, 35 Iowa 358; Smith v. City of Osage, 80 Iowa 84, 45 N.W. 404, 8 L. R. A. 644.

If there was a dedication in 1880, the question arises, To whom was it made? Was it for church, school, territory, county, or to Phoenix, if it should ever be embraced in the city of Phoenix? These questions should appear from the evidence.

The burden of proving a dedication rests upon the party claiming it, and should clearly appear, particularly when the party claiming it is attempting to justify an unlawful act. Elliott on Roads and Streets, pp. 510, 511, 514, 515. Dedication: 2 Waterman on Trespass, pp. 17, 18, 20, 22, 23, 77, 81, 82; People v. Reed, 81 Cal. 70, 15 Am. St. Rep. 22, 22 P. 474; Hayward v. Manzer, 70 Cal. 479, 13 P. 141; Miller v. Town of Aricoma, 30 W.Va. 606, 5 S.E. 148; Kemper v. Collins, 97 Mo. 644, 11 S.W. 235.

No act on part of city signifying an acceptance of a dedication is shown in the case prior to the commencement of this suit. Littler v. City of Lincoln, 106 Ill. 354; Fisher v. Beard, 32 Iowa 346; Holdman v. Village of Cold Spring, 21 N.Y. 474; Scott v. Des Moines, 64 Iowa 444; City v. Scholte, 24 Iowa 283, 95 Am. Dec. 729; Hogue v. City of Albina, 20 Or. 182, 25 P. 388, 32 Am. & Eng. Corp. Cases, 49.

The city had regularly assessed and collected municipal taxes from plaintiff since the premises in question were included in the corporate limits of the city of Phoenix until commencement of this suit. Estoppel by Taxation: Adams Co. v. B. and M. R. R. Co., 39 Iowa 507.

"A city is estopped to deny the ownership of real estate by a party whom it has permitted under a claim of right to occupy the same and pay taxes thereon levied by itself." Simplot v. City of Dubuque, 49 Iowa 630; Shellhouse v. State, 110 Ind. 509, 11 N.E. 484; Scott v. Des Moines, 64 Iowa 444, 20 N.W. 752; Holdman v. Village of Cold Spring, 21 N.Y. 474; Lee v. Lake, 14 Mich. 12, 90 Am. Dec. 220.

The city is estopped, first, by not asserting title and taking possession; second, by recognizing title in Neahr and Evans for six years and taxing them for four years. They stood by quietly and saw Evans fence the lots; then two years afterward tear the fence down and come into court and attempt to justify the act by a claim on the part of the public.

All the land herein was conveyed by Neahr to other parties within six months from the time Patrick claims to have made the plat. Had there been an intention to dedicate, such conveyance would have been a revocation thereof. City of Chicago v. Drexel, 141 Ill. 89, 37 Am. & Eng. Corp. Cases, 162, 30 N.E. 774.

The death of donor was a revocation of an offer of dedication, had there been one. People v. Kellogg, 22 N.Y. 490; Hayward v. Manzer, 70 Cal. 476, 13 P. 114.

Until 1885, blocks 16 and 17 were not within the corporate limits. Requiring stronger evidence of dedication: Quinn v. Anderson, 70 Cal. 457, 11 P. 746; Onstott v. Murray, 22 Iowa 457; Harding v. Jasper, 14 Cal. 649. User must be for purpose intended. Starr v. People, 17 Colo. 458, 30 P. 64.

When the words of dedication are ambiguous, the contemporaneous acts and declarations of the donors and usage may be adverted to to explain them. Tullis v. Young, 6 Ohio 294; City of Cincinnati v. Hamilton County, 7 Ohio 88; Dunn v. Cronise, 9 Ohio 82.

L. H. Chalmers, for Appellee.

"If the owner of a tract of land dedicate it to the public use as an open square of a city, for the convenience and accommodation of the inhabitants, the public acquire a vested right to its possession for that purpose, and the owner or his representatives cannot maintain an action of ejectment to recover possession of it. To constitute such a dedication, the legal title need not pass from its owner, nor is it necessary that any guarantee of the use should be in existence. All that is required is the assent of the owner of the land to its use, and the actual enjoyment of use for such a length of time that the public accommodation and private rights might be materially affected by the interruption of the enjoyment." City of Cincinnati v. White's Lessee, 6 Pet. 431. A careful study of this case furnishes a liberal education on the subject of dedications. See, also, New Orleans v. United States, 10 Pet. 662.

The right of the public in such cases does not depend upon a twenty years' possession. Such a doctrine, applied to highways and the streets of the numerous villages and cities that are so rapidly springing up in every part of our country, would be destructive of public convenience and private right.

There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land and the fact of its being used for the public purposes intended by the appropriation.

The testimony of Alexander in the court below as to Neahr's intention to give this particular property to the territory for capitol grounds can cut no figure after its actual dedication by the ratification of the filing of the map in the office of the county recorder of Maricopa County, and the selling of the lands with reference to that map.

"A tract of land designated in the plat of a town, laid out in 1796 as the 'public square,' was thereby dedicated to the use of the town, and no subsequent disposition made of it by the original proprietors can affect such use. A person in the possession of said land deriving title under the original proprietor has no lien upon the land for the consideration, money, or improvements." Hubert v. Gasley, 18 Ohio 18.

As said in this last case, "The use vested at the instant the first lot designated upon that plat found a purchaser."

"When the owner of land lays off a town or village thereon and makes a map of the town-site, showing it to be divided into streets, alleys, blocks, and lots, and then sells lots with reference to said map, he thereby makes an irrevocable dedication of the space represented on the map as streets to the use of the public, and if there be a public square, plaza, or plazas on the map, the same rule applies to them, and dedication thereof may be established in the same manner. The fact that the square after its dedication to the public was assessed to a person in the adverse possession thereof and all the taxes thereon were paid by him, does not impair the right of the public or estop the town from claiming under the dedication as against him." Town of San Leandro v. Le Breton, 72 Cal. 170, 13 P. 405.

This case is very similar to the case at bar in this, that the town of San Leandro was not incorporated until long after the dedication. The case also goes to show how far the courts will go on the question of taxation.

"A dedication may be made to the public by grant or through written instrument, or it may be evidenced by acts and declarations without writing. It may be made by the survey and plat alone, without any dedication either orally or on the plat. Where it is evidenced from the face of the plat that it was the intention of the proprietor to set apart certain ground for the use of the public, no particular act is required to constitute a...