Fisher v. Carpenter

• Decision Date: 04 February 1887
• Parties: JOHN M. FISHER v. GEO. W. CARPENTER
• Court: Kansas Supreme Court

12 P. 941

36 Kan. 184

JOHN M. FISHER v. GEO. W. CARPENTER

Supreme Court of Kansas

February 4, 1887

Error from Dickinson District Court.

ACTION brought by Carpenter against Fisher, to restrain the defendant from obstructing a certain so-called public street. Trial at the October Term, 1885, and judgment for plaintiff. The defendant brings the case here.

Judgment reversed and cause remanded.

C. F Mead, for plaintiff in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

No brief has been filed or oral argument made in this case on the part of the defendant in error; hence we must rely principally upon the brief and oral argument made by the counsel for the plaintiff in error. It seems that the only question involved in this case is, whether a certain piece of land situated in the city of Abilene, Kansas, is a public street, or is the private property of the plaintiff in error John M. Fisher; and that it is either the one or the other, is admitted. That it is not a public street by prescription or limitation, is clear beyond all question, under the authority of the following cases: The State v. Horn, 35 Kan. 717; Smith v. Smith, 34 id. 293, 301. The only question then for us to further consider is, whether the land is a public street by dedication, or not. Now it is not such unless it is such by reason of the filing of a certain map or plat and the surveyor's notes and the proprietor's acknowledgment, in the office of the register of deeds, on July 22, 1870. Sections 1, 2 and 6 of the act relating to plats of towns and cities, (Comp. Laws of 1879, ch. 78,) read as follows:

"SECTION 1. Whenever any city or town, or an addition to any city or town, shall be laid out, the proprietor or proprietors of such city or town or addition, shall cause to be made out an accurate map or plat thereof, particularly setting forth and describing: First, all the parcels of ground within such city or town or addition, reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons, or other public uses; and second, all lots intended for sale, by numbers, and their precise length and width.

"SEC. 2. Such map or plat shall be acknowledged by the proprietor, or, if an incorporated company, by the chief officer thereof, before some court or other officer authorized by law to take the acknowledgment or conveyances of real estate."

"SEC 6. Such maps and plats of such cities and towns and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land...