Hille v. Nill
| Decision Date | 16 August 1929 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of LaMoure County, McKenna J. Action to annul and set aside a statutory vacation of a plat and for injunctional relief. From a judgment for the plaintiffs, defendants appeal.
Reversed in part and modified and affirmed in part.
Hutchinson & Lynch, for appellants.
F J. Graham and E. F. Coyne, for respondents.
In 1909 John Schuldheisz was the owner of the southeast quarter of section 26, township 133, range 66 in LaMoure county, North Dakota, excepting the right of way of the Minneapolis, St. Paul and Sault Ste. Marie Railway Company. This tract lay east of and contiguous to the city of Kulm. The land was prairie farming land. Schuldheisz conceived the idea of platting a portion of it so he procured a surveyor and platted nine blocks and one outlot, which he designated as Schuldheisz's Addition. The portion thus platted extended south along the quarter line from the railroad right of way to the section line. The plat on opposite page shows the addition and portions of the territory adjacent thereto.
Mix street as shown on this plat is a continuation of the street which marks the south boundary of Kulm. The territory south of this street was unplatted. In December, 1909, Schuldheisz sold the outlet to Ludwig Doering, the father of the plaintiff John F. Doering. In January 1910 he sold the unplatted portion of the southeast quarter of section 26 to the plaintiff Simon Hille. During the year 1910 he also sold the lots comprising block 1 to various individuals. Schuldheisz filed the plat of this addition for record on December 30, 1910, after these several sales were made. When he sold the unplatted portion of the quarter section to Hille he showed Hille the plat and told him that he would have a way over Mix Street to go to and from Kulm, but the deed made no reference to the plat or any agreement with respect to the use of the street, nor was there any other writing. Sometime in 1910 Schuldheisz enclosed block 2 to 9 with a fence. The tract thus fenced included all of the streets and alleys adjoining these blocks excepting the 10 foot alley along the quarter line to the west. Hille built a portion of this fence between his property and the platted tract and thereafter this fence was maintained as a party fence. Pursuant to the agreement between Schuldheisz and Hille a 16 foot gate was placed in the fence at the east end of Mix Street by Hille and a similar gate at the west end of Mix Street by Schuldheisz, and it was understood that these gates were to be used by Hille and those desiring to go to and from his property to Kulm. During 1910 Hille erected a residence and several buildings about 150 feet east and a little south of this gate. At the same time Schuldheisz erected a set of buildings on or adjacent to Mix Street. He dug a well in the street and also had a small gravel pit there. In 1914 Sshuldheisz sold blocks 2 to 9 to Nill, the defendant. The property was still fenced and the gates were used pursuant to the agreement between Schuldheisz and Hille. Nill went into possession. He had no knowledge of the agreement as made between [SEE ILLUSTRATION IN ORIGINAL] Schuldheisz and Hille with respect to the use of the gates or the street, though he knew of their use by Hille. Thereafter both Hille and Nill continued the use of the gates as before. The fence between Hill's property and Nill's was kept up as a party fence. Nill lived on his property and used it for garden and pasture purposes. When Schuldheisz sold to Nill he told Nill that the plat could be vacated and Nill refused to buy until he was thus assured. The outlot sold to Doering was fenced and was used exclusively for pasture purposes. No buildings were erected thereon. The gate from this pasture opened south to the section line. No use was made of any of the streets or alleys of the platted portion by Doering or anyone else using this outlot. Schuldheisz's Addition was never included in the city of Kulm and no improvements of any kind were made on the streets or alleys. In 1924 Ludwig Doering deeded the outlot to the plaintiff John F. Doering. In June 1917, Nill attempted to vacate that portion of the platted property owned by him, to wit: Blocks 2 to 9 inclusive, pursuant to the provisions of § 3963, Comp. Laws 1913. In that behalf he prepared, executed, acknowledged and recorded the requisite declaration, but through error on the part of the person (someone in the office of the county auditor where he asked how he should proceed) who made out this instrument for him, the declaration erroneously recited that he was the owner of all of Schuldheisz's Addition. This instrument was recorded in the office of the register of deeds and the statute was in other respects complied with. Subsequently the owners of the lots in block 1, pursuant to § 3963, supra, vacated that block and the defendant Nill also gave them a quitclaim deed thereto. From the time of the attempted vacation by Nill in 1917 he was continuously in occupation and possession of blocks 2 to 9. He paid the taxes on this property and, although the record is silent as to the matter, we infer that the property was taxed as unplatted property. He continued to live there and kept up the fence as before. The gates were maintained, one at the west end and the other at the east end of Mix Street, he and Hille using them as theretofore. After Nill vacated the property in 1917 he moved his west fence south of Mix Street so as to include the alley. The people of Kulm asked him to leave the alley north of Mix Street and he did so, and it was used by the public. The section line south of the southeast quarter of section 26 was improved as a highway and used as such. Sometime in 1922 or 1923 the public purchased 50 feet along the east side of the unplatted territory which lay west of Nill's property for highway purposes, and a highway was laid out thereon extending from the street south of Kulm to the section line. This highway was in common use at the time of the trial. Hille and Nill are brothers-in-law. Some trouble arose between them. Nill complained of the manner in which one of Hille's boys drove in going to and from Kulm along Mix Street. He told Hille that he could no longer drive through and narrowed the gates so that vehicles could not pass. Thereupon in August 1927 Hille and Doering began this action to restrain the defendant Nill from closing Mix Street to the public use and to set aside the vacation of the plat. They also asked for damages but later abandoned this claim.
On this record the trial court found for the plaintiffs and gave judgment in accordance with their prayer for relief. The defendants thereupon appealed from the judgment which was entered and demand a trial de novo in this court.
In the trial court and in this court the plaintiffs insist that Schuldheisz when he platted the property in his so-called addition, sold lots with reference to this plat and filed the plat for record, thus dedicated the streets and alleys laid out thereon to the public use; that thereby the plaintiffs and the public generally acquired a right to use such streets and alleys; that Nill's attempted vacation of the plat in 1917 was ineffective and void for the reason that he did not own all of the platted property and that he misstated the facts in his declaration for vacation when he recited that he was the owner of all of it. On the other hand, the defendants insist that what was done by Schuldheisz with reference to the property in question was no more than an offer to the public to dedicate the streets and alleys laid out in the plat; that there was no acceptance on the part of the public; that Hille bought none of the platted property and was a stranger to the plat; that Doering, if he ever had any rights to the streets and alleys by his purchase of outlot 1, waived the same by non-user and by failure to assert such rights; that the vacation by Nill in 1917 was effective and valid as respects the property owned by him; that Doering was not prejudiced thereby; that even though his rights and privileges were abridged or destroyed by reason of such vacation, he cannot complain at this late date; that Nill has been in open undisputed possession of all of the property including the streets and alleys for more than ten years subsequent to the attempted vacation under a claim of title, and that he has paid the taxes thereon during such time.
On the facts as thus disclosed it seems to us that in so far as the public is concerned there was no more than an unaccepted offer on the part of Schuldheisz to dedicate the streets and alleys to the public use. It is true that Schuldheisz platted his addition and sold the outlot and the lots in block 1 with reference to this plat. Thereafter he also filed the plat for record as provided by the statute (Comp. Laws 1913 §§ 3942 et seq.). But prior to the filing of the plat for record he enclosed a portion of the property, blocks 2 to 9, together with the streets and alleys included therein and adjacent thereto, within a fence and used all of the property thus enclosed. The platted territory was never included within the city of Kulm or any other municipal organization. No streets or alleys were ever open therein or improved in any manner. The public never had any use thereof. In order to have a completed dedication to the public's use it was necessary that there be an acceptance of the dedication or grant. See Ramstead v. Carr, 31 N.D. 504, L.R.A.1916B, 1160, 154...
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