Graff v. City of Casper

• Decision Date: 28 March 1955
• Docket Number: No. 2640,2640
• Citation: 73 Wyo. 486,281 P.2d 685
• Parties: , 52 A.L.R.2d 254 A. C. GRAFF, Plaintiff and Respondent, v. The CITY OF CASPER, a Municipal Corporation, and Mary Catherine Walczak and M. J. Walczak, Defendants and Appellants.
• Court: Wyoming Supreme Court

Page 685

281 P.2d 685

73 Wyo. 486, 52 A.L.R.2d 254

A. C. GRAFF, Plaintiff and Respondent, v. The CITY OF CASPER, a Municipal Corporation, and Mary Catherine Walczak and M. J. Walczak, Defendants and Appellants.

No. 2640.

Supreme Court of Wyoming.

March 28, 1955.

Marvin L. Bishop, Allen H. Stewart, Houston G. Williams, Casper, for appellants.

Donald E. Chapin, Edward E. Murane, Casper, for respondent.

BLUME, Justice.

The plaintiff brought this action to recover from the defendants a strip of ground hereafter more fully described, alleging that he is the owner thereof and that the city of Casper in this state keeps him out of possession and asks that the title to the strip of ground be quieted in him. The defendants answered at length. No question is raised in regard to the pleadings, so it is sufficient to say that the defendants denied the ownership of plaintiff and claimed that the strip of ground was dedicated as a portion of Fifteenth Street in the city of Casper and that the plaintiff is estopped from claiming the ownership thereof. The court entered judgment in favor of the plaintiff decreeing that he is the owner thereof subject to an easement of the city for a storm sewer hereafter mentioned. The defendants have appealed to this court, except that no appeal has been taken by any party relating to the easement. The plaintiff will hereafter be referred to as in the court below, and the city of Casper as the city.

The strip of ground in controversy is 70 feet in width, north and south, and 1,120 feet in length from east to west. It is bounded on the east by South Wolcott Street in the city of Casper and on the west by South Ash Street in the same city. It is bounded on the north by some unplatted ground and by Block 3 of Krampert Addition to Casper. Lot 8 of that addition is owned by the defendants Walczak. The strip of ground in controversy is bounded on the south by a strip of ground some 53 feet in width on the west and some 30 feet in width on the east. South of the strip of ground is the Community Park Addition to the city of Casper. A diagram, approximately correct, of the strip of ground in controversy and its surroundings is as follows Approximate Diagram

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The facts and circumstances leading up to the action herein are as follows: J. M. Carey & Brother were the original owners of the area in question. On December 14, 1926, they conveyed the unplatted land, Block 3 of Krampert Addition and other lands east thereof, to the Casper Townsite Company, describing the south boundary thereof as Fifteenth Street 'if extended'. At the same time they deeded to the Casper Townsite Company, the strip of ground 53 feet wide at the west and about 30 feet wide at the east, being the strip of ground immediately south of the strip of ground in controversy, and describing the north boundary thereof as the south boundary of Fifteenth Street 'if extended'. The strip of ground here in controversy was left entirely unconveyed, accordingly giving the impression to some parties that it was left to constitute part of Fifteenth Street. The Casper Townsite Company conveyed what it had received as above mentioned to Harry E. Stuckenhoff on May 27, 1946. The strip of land here in controversy was not mentioned and the latter was not conveyed to anyone by deed until about April 16, 1951, when the surviving statutory trustees of J. M. Carey & Brother, Incorporated, executed a quitclaim deed to that strip of ground to Chas. E. Chapin who conveyed it to the plaintiff by warranty deed on March 12, 1952. The area in question was never embraced in any official plat.

Before proceeding any further it is necessary, in order to arrive at a correct conclusion herein, to make a distinction between the east part and the west part of the strip of ground in controversy. The reason is this: The east part was a traveled road or street, this street leaving the strip of ground in controversy about midway between South Wolcott and South Ash Streets, swinging toward the southwest and then toward the northwest to South Ash Street, constituting sort of a circular road or street. In 1923, the city laid a storm sewer along the center of the traveled road or street, including the circular part above mentioned. The record does not disclose exact distances in this connection, but the storm sewer left the east part of the strip of ground in controversy to enter the circular part of the road, as far as we can judge, about 510 feet west of South Wolcott Street, or perhaps a little further. These elements do not appear in connection with the west part of the strip of ground in controversy, hence the distinction to be drawn between the east part and the west part, which will at times be referred to as such.

We shall first proceed to consider the east part above mentioned. The testimony herein on the part of a number of witnesses is substantially undisputed that the traveled road above mentioned, including the east part of the strip in question, the so-called Fifteenth Street, and the circular road or street, was traveled continuously and openly by many people and the public generally from about the early part of the 1920's or before and, as far as we can tell from the record, up to the time of the trial in this case. The witnesses designated the traveled road as a country road or trial, and it remained such until at least about 1947, when apparently some improvements were made. The road or street had two definite and well worn tracks, showing or indicating that it was traveled to a considerable extent. The circular part of the road or street is shown, in part at least, on the plat of the Community Park Addition, which was platted in 1922. No good purpose would be subserved by setting out the testimony of these witnesses in detail.

On May 21, 1923, the city council of the city of Casper adopted a resolution reciting in part: 'That the said City Council of the City of Casper, Wyoming, hereby declares its intention to make an improvement by laying, construction and completion of storm sewer, together with inlets and catch basins in the following streets, avenues, roadways, alleys or public ways, or parts thereof, to-wit:

'* * * West Fifteenth Street from South David Street to South Ash Street (the circular road); East Fifteenth Street from South Center Street to South Wolcott Street * * *.'

On June 18, 1923, the city council of the city of Casper, adopted an ordinance to carry the resolution of intention into effect and specifically mentioned the portion of Fifteenth Street as in the resolution of intention. There is a gap between the two portions above mentioned, the specific description of which we have not been able to find in the ordinance but which was doubtless contained in some description. In any event the storm sewer was constructed along the center of the strip of ground which we have designated as the east part and along the circular part of the street. A manhole and some catch basins were constructed on the east part. An assessment of $8,720.94 was made against J. M. Carey & Brother for 'unplatted land between 13th & 15th Streets and Durbin & Ash Streets', this showing the recognition of the existence of Fifteenth Street both on the part of the city and the Careys. A water line was constructed by the city along the area in question in 1948 and other improvements were undertaken by it to be made commencing with about the middle 1940's.

Counsel for plaintiff do not consider the action of the city council of Casper, as above mentioned, of any importance. They say, 'The mere fact that a sewer line was installed across this area in 1923 does not show any prescriptive right to the surface of the area.' In other words counsel do not consider the installation of the sewer as involving any claim to the surface. We think that is a fundamental error. The area in question, judging by some of the exhibits in the record, was reasonably expected to become at some time a part of an addition to the city of Casper. Cities and towns do not ordinarily construct sewers and drains in cities and additions thereto except along streets and alleys. Generally speaking, and except when necessary, it would be rather irrational to construct them across lots which are intended for building purposes. Hence, it would seem that when a sewer is constructed along a piece of ground, the implication is that that piece of ground is, or that it is claimed as a public thoroughfare and not merely as an easement of the limited character as claimed by counsel for the plaintiff. And that would be particularly true when such piece of ground is used by the public as a traveling road.

It is stated in 26 C.J.S., Dedication, § 40, pp. 107, 108: 'It has been held that the enactment of an ordinance authorizing or directing the laying of a sewer or water main in a dedicated street constitutes an acceptance. * * * An acceptance of dedicated streets is clearly shown by the construction and maintenance of sewers in the streets dedicated * * *.' In Hendrickson v. City of Astoria, 127 Or. 1, 270 P. 924, 927, the court stated: 'Such important municipal acts as the construction of a sewer by the municipal authorities, at the expense of the city, in a dedicated street * * * strongly indicate that the city had accepted the dedication of the street 'through' which the sewer is constructed * * *.' In Trustees of Schools v. Dassow, 321 Ill. 346, 151 N.E. 896, 899, the court stated: 'Acceptance of streets by a city or village may be shown by the affirmative act of taking possession thereof for purposes of placing water mains or sewers therein or by the general user by the public for a considerable period of time. Where a dedication is very beneficial or greatly convenient or necessary to the public an acceptance of such dedication may be implied from slight circumstances.' In the case of Burroughs v. City of Cherokee, 134 Iowa...