Fortson Inv. Co. v. Oklahoma City
| Decision Date | 23 February 1937 |
| Docket Number | 26336. |
| Citation | 66 P.2d 96,179 Okla. 473,1937 OK 122 |
| Parties | FORTSON INV. CO. v. OKLAHOMA CITY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 23, 1937.
Syllabus by the Court.
1. Where rule of Regional Planning Commission requires conveyance to the city "for public purposes only" of 5% of the gross platted area before approval of plat, deed voluntarily given to the city in compliance therewith is not void irrespective of the validity of the rule of the commission.
2. Where warranty deed is given city "for public purposes only," in connection with platting new addition, it constitutes a dedication, and, where the grantor thereafter sells lots in said addition to persons who relied thereon the law considers it in the nature of an estoppel in pais and the dedication is deemed perfect, precluding the grantor from revoking such dedication in a suit for cancellation even though such purchasers are not made parties to the suit.
Appeal from District Court, Oklahoma County; R. P. Hill, Judge.
Action by the Fortson Investment Company against the City of Oklahoma City. From judgment for defendant, plaintiff appeals.
Affirmed.
Wm. H. Lewis, A. C. Hough, and S. J. Gordon, all of Oklahoma City, for plaintiff in error.
Harlan Deupree, Municipal Counselor, and A. P. Van Meter, Asst. Municipal Counselor, both of Oklahoma City, for defendant in error.
This is an action by Fortson Investment Company to cancel a deed covering about 2 1/2 acres of land which it had granted to Oklahoma City on October 22, 1930, or, in the alternative, to recover the market value of the property conveyed. The deed was executed under the following circumstances: Plaintiff was the owner of about 45 acres of unplatted land adjacent to Oklahoma City. Plaintiff wished to plat this tract into lots and blocks and create a new addition called "Meadowbrook addition"; but in order to do so, it was necessary to have the plat approved by the Regional Planning Commission as provided in sections 6158 to 6164, O.S.1931 (11 Okl.St.Ann. §§ 431-437). These sections authorize the city to create a "Regional Planning Commission" whose jurisdiction extends three miles outside the city limits, with the duty to prepare plans for the systematic development of the property within its district. The act provides that all plans and plats for new additions shall be first submitted to the commission for approval before they are entitled to be recorded with the county clerk. The act further provides a penalty for its violation.
Pursuant to this act the Oklahoma City Regional Planning Commission was created and promulgated a rule that in all new additions, in addition to the streets and alleys, 5 per cent. of the gross area must be deeded to the city for public purposes. The rule required a warranty deed to such property, free from incumbrance, dedicating same "for public purposes only." The deed in question covers 5 per cent. of plaintiff's tract, and after its execution, said plat was approved and recorded, and numerous lots sold in the new addition. This action was filed on January 10, 1934. The case was tried to the court without a jury and judgment rendered for defendant.
Plaintiff brings this appeal on the ground that this was an unconstitutional taking of private property for public use, without payment of just compensation, thus depriving him of his property without due process of law, in violation of section 7, art. 2, Okla. Const. On the other hand, defendant contends that this was not a "taking" by the city, but rather was a voluntary dedication or grant of the property in question, and sets out eight independent propositions in its brief which, it claims, bars plaintiff's recovery.
The first contention of the defendant is that the deed was a dedication for park purposes, and when lots were sold in the new addition to persons who relied thereon, the law considers it in the nature of an estoppel in pais, precluding plaintiff from revoking such dedication. However plaintiff insists that the deed is void, and the dedication could not become complete under any theory of estoppel. Plaintiff cites the following authorities holding that the doctrine of estoppel cannot be used to give validity to an otherwise void instrument: 10 R.C.L. 108; Colby v. Title Insurance & Trust Co., (1911) 160 Cal. 632, 117 P. 913, 35 L.R.A. (N.S.) 813, Ann.Cas. 1913A, 515; Rice v. McCarthy (1925) 73 Cal.App. 655, 239 P. 56; Reed et ux. v. Johnson et ux. (1901) 27 Wash. 42, 67 P. 381, 57 L.R.A. 404. But the city acquired the property by an unqualified warranty deed. The conveyance was not by order of the Legislature, or the Regional Planning Commission. The deed does not refer to the rules of the commission or the sections of the statute. Plaintiff had the power to make the conveyance and the city had the power to accept it. Section 6350, O.S.1931 (11 Okl.St.Ann. § 563); section 5, art. 1, Charter of City of Oklahoma City. The deed on its face was not illegal or against public policy. The record shows no official act of the Regional Planning Commission refusing to approve plaintiff's plat. He did not bring a mandamus action and was not compelled by authority of statute or rule of the commission to execute the deed. The lower court, in rendering judgment for defendant, found that the deed was a voluntary dedication to the public and we cannot say that this finding is against the clear weight of the evidence. Therefore it will not be disturbed. Melton v. Whitney (1933) 164 Okl. 220, 23 P.2d 660. Therefore we hold that the giving of the deed in the instant case did not constitute an unconstitutional "taking" of plaintiff's property within the meaning of the eminent domain statutes, and is not void. The question here is not whether the rule of the commission is a proper police regulation, but rather, even if it is invalid, would its use by the city, in convincing plaintiff that he should make a deed constitute such menace, duress, or undue influence as to warrant cancellation of the instrument? A deed procured by menace,...
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