Hall v. Breyfogle

• Decision Date: 19 April 1904
• Citation: 70 N.E. 883,162 Ind. 494
• Parties: HALL et al. v. BREYFOGLE.
• Court: Indiana Supreme Court

162 Ind. 494

70 N.E. 883

HALL et al.

v.BREYFOGLE.

Supreme Court of Indiana.

April 19, 1904.

Appeal from Circuit Court, Lake County; A. C. Capron, Special Judge.

Action by Louis V. Breyfogle against Thomas H. Hall and others. From a judgment for plaintiff, defendants appeal. Reversed.Fancher & Pattee, for appellants. A. J. Bruce and J. Frank Meeker, for appellee.

HADLEY, J.

Injunction to restrain appellant town from opening and improving certain alleged streets, and to prevent the flooding of appellee's land with storm water. The facts shown exclusively by public records and uncontradicted are these: In 1855 one Smith, being the owner of certain lands adjacent to the town of Crown Point, platted the same into lots of 10 acres each, which he designated and recorded in the recorder's office of Lake county as “Smith's Addition of Outlots to the Town of Crown Point.” Said lots were numbered from 1 to 16, inclusive. November 16, 1870, John M. Scott was the owner by mesne conveyances from Smith of all that part of said outlot 2 lying east of the Centerville road, and the north half of said outlot 3, and Mary Boyd a like owner from Smith of the south half of said outlot 3. On said November 16, 1870, William M. Boyd, husband of Mary Boyd, acknowledged before the recorder of the county a plat of all of said outlot 3 and all of 2 lying east of the Centerville road; said plat covering the property (but not so stated) then owned by John M. Scott and Mary Boyd, which plat was designated as “Summit Addition to the Town of Crown Point,” and was marked into numbered and dimensioned lots, blocks, and streets as shown by the following diagram:

Image 1 (2.53" X 4.42") Available for Offline Print

Said plat was placed of record in the recorder's office of the county. That noted on the plat as Griffin's Reserve, and blocks 1, 2, 5, and 6, was the land owned by Scott, and that noted as blocks 3 and 4 was that owned by Mary Boyd. After the making and recording of said last-named plat, to wit, June 15, 1881, Mary Boyd and husband conveyed said blocks 3 and 4 to one Andrews by warranty deed describing the same as follows: “The south half of lot 3 in Smith's Addition of Outlots to the Town of Crown Point, which is known as blocks 3 and 4 in Summit Addition to the Town of Crown Point.” These two blocks are now owned by the Chicago & Erie Railroad Company, it deriving title by mesne conveyances from Andrews by same description. After the recording of the plat of Summit Addition, to wit, August 27, 1886, John M. Scott conveyed by mortgage a part of his lands covered by said plat, describing the same as follows: “All of blocks 1 and 2; all of block 5, except lots 5 and 6; and all of block 6 except that part deeded to the Chicago & Atlantic Railroad Company for right of way. All as marked and laid down on the recorded plat of Summit Addition to the Town of Crown Point.” The mortgage was foreclosed, and the premises sold by the sheriff under same description, and on April 12, 1898, the appellee accepted the sheriff's deed conveying to him said premises under the identical description. Also, on September 20, 1894, appellee purchased and accepted by mesne conveyance from Scott another portion of said premises under the following description: “Griffin's Reserve, as marked and laid down on the recorded plat of Summit Addition to the Town of Crown Point,” and on January 11, 1898, by a like mesne conveyance from Scott, the remainder of the premises in controversy, under the following description: “Lots numbered 5 and 6, in block 5, in Summit Addition to Crown Point in Lake County, Indiana.” The platted territory was taken up in the tax duplicate, and taxed as lots and blocks in Summit Addition. Summit Addition, at some indefinite time, was embraced within the corporation limits of the town of Crown Point. Grant street, as noted, was but a northern extension of a street of that name running through the town, and on October 1, 1883, the trustees of the town by proper ordinance caused an improvement at the expense of the abutting property owners of the east sidewalk of Grant street from Foote to the north line of John street, which improvement extended the full length of Grant street in Summit Addition; and the entire length of Grant street, and that part of John street, in Summit Addition, lying west of Grant street, have been worked by the town for an indefinite period, not less than two years before the commencement of this suit. John street east of Grant street, and all of Jackson and Sheridan streets in Summit Addition,have been inclosed and used by appellee and his grantors for 30 years. On July 8, 1902, the trustees of the town passed an ordinance for the opening and improvement of the streets in Summit Addition, for public use and convenience, to the full width as marked and laid down in the recorded plat thereof, and directing the marshal to cause all obstructions to be removed, and said streets opened and put in condition for public use as fixed and shown by said recorded plat. On October 7, 1902, the town marshal served written notice upon appellee that he would on October 9th, by order of the trustees, open John street the full length through Summit and Railroad Addition, and did about the time indicated enter and was engaged in the construction of a center grade and side ditches, when stopped by a restraining order issued upon appellee's complaint filed October 13, 1902. The storm water that may be collected in the side ditches of streets of said town and in those to be constructed in Summit Addition can be successfully and conveniently dispatched by the construction of an adequate ditch eastwardly along the south side of John street to the intersection of a public drain in Indiana avenue.

These facts, shown by the pleadings and uncontradicted record evidence, present for decision the single question: Is appellee entitled thereunder to injunction against appellant town preventing it from opening and improving for public use the streets in Summit Addition? Certain fundamental and well settled principles must be given effect.

1. The making of a plat of a town, or of an addition thereto, upon which streets, alleys, lots, and blocks are noted as such, and the recording of such plat, and sale of lots as designated thereon, operates as an irrevocable dedication to the public of all streets and alleys so marked on such plat so far as purchasers of lots are concerned. Section 4412, Burns' Ann. St. 1901; Woodruff Place v. Raschig, 147 Ind. 517, 46 N. E. 990;Rhodes v. Brightwood, 145 Ind. 21, 43 N. E. 942;Fowler v. Linguist, 138 Ind. 566, 37 N. E. 792;Wolfe v. Sullivan, 133 Ind. 331, 32 N. E. 1017;Miller v. Indianapolis, 123 Ind. 196, 24 N. E. 228.

2. The acts of proprietors in recognizing an unauthorized and invalid plat, recorded upon the proper public record, and selling lots or blocks in reference thereto and as marked thereon, is an adoption of such plat so far as to constitute a dedication to the public of the streets and alleys indicated thereon, which is effectual as to lot purchasers. Town of Woodruff v. Raschig, 147 Ind. 517, 46 N. E. 990;Miller v. Indianapolis, 123 Ind. 196, 24 N. E. 228;Indianapolis v. Kingsbury, 101 Ind. 200, 51 Am. Rep. 749;Thompson v. Maloney (Ill.) 65 N. E. 236, 239; Russell v. City of Lincoln (Ill.) 65 N. E. 1083.

3. Acceptance by the public of a dedication may be manifested by some formal act of the public authorities, or implied from the latter's improving or repairing the same, or from any other act with respect to the subject-matter that clearly indicates an assumption of jurisdiction...