Fitzgerald v. Saxton

• Decision Date: 02 February 1894
• Citation: 25 S.W. 499,58 Ark. 494
• Parties: FITZGERALD v. SAXTON
• Court: Arkansas Supreme Court

25 S.W. 499

58 Ark. 494

FITZGERALD v. SAXTON

Supreme Court of Arkansas

February 2, 1894

Cross-Appeals from Pulaski Chancery Court. David W CARROLL, Chancellor.

STATEMENT BY THE COURT.

This is a proceeding instituted by the appellant, as plaintiff, in the Pulaski chancery court, against appellees, as commissioners and collector of Improvement District No. 25 in the city of Little Rock, on the 16th July, 1890, to enjoin them from entering upon and appropriating plaintiff's land as a street, and improving the same, and also from collecting the taxes levied on his said land for the purpose of said improvements. Sundry other questions were raised by the original complaint, but the two suggested above are all that are presented for our consideration.

The defendants answered, making their answer a cross-bill with prayer for the enforcement and collection of said taxes amounting for the years 1890 and 1891, to the sum of $ 135.00, and also for the statutory penalty and allowance of attorney's fee.

A temporary restraining order was made, in answer to the prayer of plaintiff, by the county judge, in the absence of the chancellor from the county.

The cause was heard on the 9th day of May, 1892, by the chancellor and decree rendered to the effect that the injunction be perpetual as to the taking of plaintiff's land for a street, and the improvement thereof as such; but dissolved as to the collection of the taxes, which were held to have been properly and lawfully levied. Neither penalty attorney's fees, nor interest were allowed. Both parties appealed from that decree to this court.

It appears from the agreed statement of facts, that the ten acres in controversy are part of a quarter section of land owned originally by Lemuel R. Lincoln, who sold the same by deed to Augustus Marchand March 24, 1851, Augustus Marchand to Bishop Byrne, December 29, 1851, and that plaintiff (Edward Fitzgerald) bought same from Thomas J. Riley as commissioner in chancery, December 16, 1879. It does not appear how the title passed from Augustus Byrne to Riley as commissioner in chancery. The description of the ten acre tract in all these deeds and conveyances is substantially the same, and is as follows, to-wit:

"That part of a tract of land surveyed by Dr. Samuel H. Webb, December 23, 1851, being part of the southeast quarter of section four (4), township one (1) north, range twelve (12) west, 5th p.m. beginning at a point at the south-east corner of block No. 410, agreeable to survey made by I. M. Moore for Lemuel R. Lincoln in laying out lots adjoining the city of Little Rock, and known as Lincoln's Addition, and running thence west (40) forty rods; thence north (40) forty rods; thence east (40) forty rods to the northeast corner of block 411, in Lincoln's Addition aforesaid; thence south (40) forty rods to the place of beginning."

It appears that the only plat or bill of assurance of Lincoln's Addition of record is the one recorded in "A" 2, p. 113, in the recorder's office of Pulaski county, filed February 19, 1857, by Peter T. Crutchfield, administrator of the estate of Lemuel R. Lincoln, then deceased; and a copy of this is stated to have been filed in the papers in the case of Webster v. City of Little Rock, 44 Ark. 537. A plat of the S. E. 1/4 Sec. 4 T. 1 N. R. 12 W., the quarter section mentioned above as laid off in blocks and lots and sold by said administrator in obedience to an order of the chancery court, on February 2, 1857, is attached to and is a part of the transcript herein, showing the location of the ten acres in controversy, and also the location of the Lincoln House, frequently referred to in the testimony herein, as well as of a part of Tenth (formerly Caroline) street as extended into this tract from the east, and some adjacent blocks.

It appears that, on December 19, 1879, appellant conveyed by deed the northeast quarter of said block 410, and to the center of Bishop and Tenth streets adjoining same on the west and north respectively, concluding with the words "together with the one-half of said streets bounding the same, the said streets subject to the right of way for the public." And that this was re-conveyed afterwards to appellant by same description.

It appears, also, that, for many years, the city street named "Bishop street" has been left open and extends through the center of said ten acre tract from north to south, and that the street now known as "Tenth street," formerly Caroline street, passes through the center of said tract from east to west, the two streets dividing the tract into four blocks of equal size, the said blocks No. 410 and 411, being the eastern blocks of the four, the two west of Bishop street having no numbers.

It appears that these two streets and four blocks, making up the whole ten acres, are thus laid off in exact conformity with the corresponding streets and blocks in the city of Little Rock, the two streets being parts of Bishop and Tenth streets respectively, the one extending from the north to the center of the north line of the tract, and passing out south from the center of the south line; and the other to the center of the east line and passing out from the center of the west line of the tract --the city of Little Rock being on all sides and in all directions from it. It also appears from the plat exhibited that this ten acre tract is laid off altogether without reference to the lines and boundaries of governmental surveys of the land; and that this conformity to the city admeasurements dates back to the said platting of the same while owned by said Lincoln.

It appears that, at various times during his ownership, appellant has leased various lots and parcels of ground in this tract to various and sundry persons, recognizing the streets through and blocks on said tract in making descriptions in general conformity to them.

Among the items of the agreed statement of facts is one expressed in these words, to-wit: "That if the ten acres in controversy is in the city limits of the city of Little Rock, it is there by virtue alone of the act of the legislature of Arkansas, April 28, 1873, as construed by the Supreme Court of Arkansas, in the case of Webster v. City, 44 Ark. 537, unless it be by acquiescence or use."

It further appears from the agreed statement of facts that city taxes were collected on said tract for the years 1874-1877 inclusive, and for the years 1880-1884 inclusive, in the name of plaintiff, as blocks 410 and 411, Lincoln's addition to the city of Little Rock, except for the year 1880, the west half of said tract not being assessed by any other description, either as city or county property. (In brief of appellees' counsel, we find a reason suggested why the city taxes on these lots were not collected for the intervening years.) From 1884 the taxes for the city have been continued to be collected on this property up to the trial of this cause.

The testimony of witnesses will be referred to in the opinion as occasion may demand.

Decree reversed.

Blackwood & Williams for appellant, Fitzgerald.

1. There is no street through this property, either by dedication, limitation or prescription, and said property has never been platted into lots or blocks. 47 Ark. 71; Ib. 431; 50 id. 53; 15 Ill. 235; 108 id. 467; 87 id. 65; 41 Wis. 501; 11 N.E. 484; 55 Am. Rep. 618; 49 Wis. 697; Mansf. Dig. sec. 738; 44 Vt. 239, 243; 32 Mich. 279; 67 Tex. 345; 103 Ind. 349; 12 A. 667; 9 id. 63; 70 Pa.St. 125.

2. The property is not in the city, and hence not subject to taxes. It was not laid off into lots and blocks (44 Ark. 537), and hence did not become a part of the city, under the act of, April 28, 1873. If not in the city, the council had no power over it. Mansf. Dig. secs. 825, 826.

Ratcliffe & Fletcher for appellees.

1. There has been a public highway through this property for more than twenty-five years. Tenth street has been used by the public as a highway, openly and adversely, for more than seven years, and long before it was incorporated in the city limits. When the property became a part of the city, the public highways became subject to the jurisdiction of the city. Elliott, Roads and Streets, 312 et seq. 329. By obstructing or abandoning the use of old roads and adopting the course of streets in lieu thereof and the use of said streets by the public, these streets were dedicated to public use. 19 Pick. 405; 50 Ark. 57. Seven years open and adverse use gave the public the right to continue to use the street. 50 Ark. 53; 51 id. 271; 47 id. 437; lb. 66; 34 Ind. 497; 3 Zabriskie, (23 N.J. L.) 712.

2. But whether the street goes through the property or not, it goes up to the property on both sides, and thus benefits it. 2 Dill. Mun. Corp. (2nd ed.) sec. 634; 52 Ark. 107. Whether benefitted or not, it was for the city council to say what property should be embraced in the district, and the action of the council cannot now be questioned. Mansf. Dig. sec. 839; 42 Ark. 152.

3. The property is in the city. 44 Ark. 537; 34 Iowa 194; 13 Gratt. 389; 2 Dill. Mun. Corp. (2nd ed.) secs. 491-495; 38 Ark. 87; 54 id. 372.

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