Faust v. City of Huntington

• Court: Indiana Supreme Court
• Writing for the Court: Elliott, J.
• Citation: Faust v. City of Huntington, 91 Ind. 493 (Ind. 1883)
• Decision Date: 26 November 1883
• Docket Number: 10,921
• Parties: Faust v. The City of Huntington et al

91 Ind. 493

Faust v. The City of Huntington et al

No. 10,921

Supreme Court of Indiana

November 26, 1883

From the Huntington Circuit Court.

Judgment affirmed.

J. T Alexander and J. M. Hatfield, for appellant.

B. F Ibach and L. P. Boyle, for appellees.

OPINION

Elliott J.

The complaint of the appellant alleges that in 1856 he and Lewis Hutzfield owned in severalty a tract of land adjoining the then town of Huntington; that in the year named Hutzfield platted an addition to the town, marked thereon streets and alleys, and duly recorded the plat; that the street known as Market street was platted fifty feet in width; that afterwards, in the year 1874, appellant laid off and platted an addition to the city of Huntington, and dedicated to the public use as part of Market street, sixteen feet, thus increasing the width of that street to sixty-six feet. The complaint, after stating the facts of which we have given a brief synopsis, proceeds as follows: "Plaintiff avers that said defendants, the city of Huntington and Patrick O'Brien, as city civil engineer of said city, are threatening to make permanent improvements on said street by gravelling the same and bouldering the gutters upon either side, and threaten to so locate said improvements as to place thirty-three feet on the north half of said street on the north side of the original dividing line between said Hutzfield and this plaintiff; and plaintiff further alleges that defendants are appropriating and threaten to further appropriate the lands and lots of this plaintiff for street purposes without any grant from this plaintiff or any one else in his behalf, or proceedings being had to condemn the land, and, unless enjoined, will so locate said improvements as to place the same on the lots of this plaintiff, thereby destroying permanent improvements erected by plaintiff on his premises adjacent to said Market street."

It is very certain that land can not be appropriated for the purpose of a street unless compensation is first assessed and tendered the owner. The complaint therefore shows, with sufficient certainty, that the land has not been seized by virtue of the right of eminent domain.

It shows also that the corporation of Huntington had not acquired a right by grant. This is as far as the pleading goes; it excludes the hypothesis of title by condemnation or grant, but it goes no further.

There is a way of acquiring lands for public purposes not included in either of the two methods we have mentioned, and that mode of acquiring lands for public use is by implied dedication. If a land-owner, by open and visible acts, unequivocally indicates to the public and to citizens that he intended to and did, throw open a street to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of the owner as constituting an irrevocable dedication. In such cases there need be no grant. If the acts indicate an intent to dedicate, are so treated by the public, and there is an acceptance, then it is immaterial whether there was or not any express dedication. The principle upon which implied dedication rests is that which underlies the doctrine of estoppel in pais. In speaking of implied dedications, the Supreme Court of the United States said: "All that is required is the assent of the owner, and the use of the premises for the purposes intended by the appropriation. The law considers the owner's acts and declarations as in the nature of an estoppel in pais and precludes him from revoking the dedication." Morgan v. Railroad Co., 96 U.S. 716. The Supreme Court of Illinois, in discussing this subject, said: "An examination of the cases referred to on the argument, will show, that dedications have been established in every conceivable way, by which the intention of the dedicator could be evinced." Godfrey v. City of Alton, 12 Ill. 29. The cases sustaining the doctrine of implied dedication upon the ground that it exists wherever there is an unequivocal manifestation of that intent, and the owner's conduct has been acted upon by others, are very numerous, and we cite only a few of the many. Doe v. President, etc., 7 Ind. 641; City of Columbus v. Dahn, 36 Ind. 330; City of Evansville v. Evans, 37 Ind. 229; City of Cincinnati v. White, 6 Pet. 431; Rowan v. Town of Portland, 8 B. Monroe, 232; Holdane v. Trustees, 21 N.Y. 474. In Gwynn v. Homan, 15 Ind. 201, it was said, in speaking of the act of dedication, that "Such fact may be shown by proof of acts on the part of the owner, such as selling lots on opposite sides of a strip of ground suitable for a street or highway, and standing by and seeing it used by the public as...