Giffen v. City of Olathe

• Decision Date: 03 July 1890
• Citation: 24 P. 470,44 Kan. 342
• Parties: JOHN M. GIFFEN v. THE CITY OF OLATHE et al
• Court: Kansas Supreme Court

24 P. 470

44 Kan. 342

JOHN M. GIFFEN v. THE CITY OF OLATHE et al

Supreme Court of Kansas

July 3, 1890

Error from Johnson District Court.

INJUNCTION. The facts are stated in the opinion. Judgment for the defendant City, and others, at the January term, 1888. The plaintiff Giffen brings the case to this court.

Judgment affirmed.

A Smith Devenney, for plaintiff in error.

S. T Seaton, city attorney, for defendants in error; F. R. Ogg, of counsel.

GREENE C. All the Justices concurring.

OPINION

GREEN, C.:

This was an action for an injunction against the city of Olathe and its officers to restrain them from enforcing certain orders to open portions of certain streets and alleys which had been inclosed by the plaintiff below. The trial court made the following findings of fact:

"1. The defendant is a city of the second class, duly incorporated and organized as such under the laws of the state of Kansas.

"2. In the year 1857, John T. Barton surveyed and laid off the southeast quarter of section 26, and the northeast quarter of section 35, all in township 13, of range 23, in Johnson county, Kansas, into lots, blocks, squares and streets for a townsite, and platted and prepared a map of the same, and designated it as the town-site of Olathe, Johnson county, Kansas.

"3. At the time Barton located on said lands and commenced surveying and platting the same, there were no other occupants thereon except those interested in the town company, but while the same was being surveyed and platted, other parties came and located on said lands with the view of purchasing lots.

"4. Barton entered said lands at the general land office at Lecompton, Kansas territory, on the 17th day of May, 1858, the S.E. 1/4 of said section 26 (being the quarter-section in which the lots, blocks and streets hereinafter mentioned are all situated) being entered by said Barton as 'President of the Olathe Town-Site Corporation.'

"5. On said 17th day of May, 1858, there were twenty-seven inhabitants on said lands, some on each of said quarter-sections.

"6. Before the completion of said survey and the platting of said town-site, Barton formed a town company of not less than five members.

"7. On the 20th day of February, 1857, the legislature of Kansas territory passed the act offered in evidence, 'To incorporate the city of Olathe.'

"8. Afterward, and about the month of May or June, 1857, the inhabitants of said town-site held a town or city election, and said John T. Barton was elected mayor.

"9. On the 11th day of May, 1858, the legislature of Kansas territory passed the act offered in evidence herein 'Incorporating the city of Olathe.'

"10. In the summer of 1857, said John T. Barton had the map of said town-site lithographed, and said town company distributed numerous copies thereof among the inhabitants of said town-site and throughout the country, and Barton filed a copy of said map or plat in the office of register of deeds of Johnson county, but that the copy filed as aforesaid was not acknowledged, and there was no certificate or other evidence thereon that it was filed by Barton or anyone acting for said town company.

"11. The plats offered in evidence, including the plat filed in the register of deeds' office in 1868, are copies of the original plat and map made from the original survey of said townsite by said Barton in 1857.

"12. Said town company sold the lots on said town-site by the numbers of the lots and blocks as designated on said plat and by reference thereto, and the numbers of the lots and blocks and the names of the streets in said city ever since have been and now are the same as designated on said original plat, and the lots and blocks and streets in said city have uniformly been known and designated as on said original plat.

"13. On the 26th day of March, 1862, the United States issued a patent to the S.E. 1/4 of section 26, township 13, of range 23, in Johnson county, Kansas, being the quarter-section in which the lands and streets in controversy are situated, to John T. Barton, 'President of the Olathe Town Company, in trust for the several use and benefit of the occupants of the town-site of Olathe, according to their respective interests, and as the proper corporate authority under the townsite act.'

"14. Barton has not executed any deed or other conveyance of said town-site to said town company.

"15. The proclamation of the president of the United States opening the lands on which said town-site was located for entry and settlement, was officially published in the Lecompton Democrat on the 26th day of March, 1858.

"16. At the time of the survey of said town-site in 1857, as aforesaid, the lots and blocks in said town-site, including the blocks 9, 24, and 25, and the lots in said blocks, were staked off as surveyed and platted.

"17. The streets in said city were worked and graded, have been worked and graded by the city authorities as originally surveyed and platted as aforesaid, and in the greater part of said town-site the lots and blocks have been fenced or occupied by buildings, and the travel has been on the streets as originally platted.

"18. The portion of Prairie street between blocks 9 and 24, and that portion of Spruce street between blocks 24 and 25, have never been worked or graded by said city, or traveled as streets by the public.

"19. In 1871, the plaintiff being employed by the city council of Olathe for the purpose, made a re-survey of said town-site, traced the blocks and streets, and made a plat according to the original survey and plat thereof, and in said survey surveyed said blocks 9, 24 and 25, but did not trace said Spruce and Prairie streets through or between said blocks, and the map of said re-survey was submitted to and approved by the city council.

"20. Plaintiff has been a resident of the town-site of Olathe since March, 1858, and was a resident of the quarter-section of land in which the said lots, blocks and streets are situated, on May 17, 1858.

"21. Plaintiff took possession of said blocks 9 and 24, and part of block 25, in 1866, plowed the same, and in 1867 fenced said lands, and ever since said time has had all said premises inclosed in one field, farming the same from year to year during all of the time since 1867, and was in the sole, exclusive and undisturbed possession of said premises, under claim of ownership and color of title from the year 1866 until the 18th day or 19th day of July, 1885, at which time said defendant by its officers committed the acts complained of in plaintiff's petition.

"22. On the 18th or 19th day of July, 1887, the street commissioner of said city, acting under the orders and direction of the mayor and city council of said city, cut down and destroyed the fence of plaintiff across said Prairie street at the point where said street intersects the east line of blocks 9 and 24, and across Spruce street at the intersection of the east line of blocks 24 and 25, and opened said streets between said blocks, and the cost to plaintiff of repairing said fence was $ 7.

"23. Said streets have no outlet from the west line of said blocks, and there was, at the time the same were opened by said street commissioner as aforesaid, no public need for the use of said streets through said blocks.

"24. All of said lots have been taxed since 1857, and at the time plaintiff took possession of said lots in 1866, he held tax deeds from said Johnson county to a large number thereof.

"25. Plaintiff has sold lots in said blocks since his occupancy of the same as aforesaid, and conveyed said lots by the numbers of the lots and blocks, 'as described in the plat of the town of Olathe.'"

And from the foregoing facts, the court made the following conclusions of law:

"1. Said Spruce and Prairie streets are legal public streets through and between said blocks above mentioned.

"2. The city of Olathe has the right by its officers to open said streets for the use of the public between said blocks 9, 24 and 25, and to remove all obstructions therefrom, including the fences of the plaintiff erected thereon.

"3. The plaintiff is not entitled to the relief prayed for in his petition.

"4. The temporary injunction heretofore granted herein, should be dissolved."

The contentions of the plaintiff in error are, that there was no lawful entry of the town-site of Olathe; that the patent thereto is void; that there was neither a statutory nor common-law dedication of the town-site; and that there was an adverse enjoyment of the alleged streets and alleys for the statutory period of fifteen years.

The claim is made in behalf of the city that there was a dedication of the streets and alleys and public grounds, as platted by John T. Barton in 1857, and subsequently recognized by the plaintiff in error, and that by reason of such recognition he is estopped from questioning the validity of such plat and dedication.

I. To determine the question of the sufficiency of the dedication, it will be necessary to consider the act of congress "For the relief of citizens of towns upon the lands of the United States, under certain circumstances:"

"That whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town-site, and therefore not subject to entry under the existing preemption laws, it shall be lawful, in case such town or place shall be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judges of the county court for the county in which such town may be situated, to enter at the proper land office and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof according to their respective interests; the execution of which...