Hoxie v. Gibson

• Decision Date: 14 November 1921
• Docket Number: 227
• Parties: HOXIE v. GIBSON
• Court: Arkansas Supreme Court

234 S.W. 490

150 Ark. 432

HOXIE v. GIBSON

No. 227

Supreme Court of Arkansas

November 14, 1921

Appeal from Lawrence Chancery Court, Eastern District; L. F. Reeder Chancellor; affirmed.

Decree affirmed.

Ponder & Gibson, for appellant.

1. The town council had no authority to vacate the strip of ground in controversy, the same being part of a street. C. & M Digest, § 4006; 75 Ark. 534; art. V. § 24, Const 1874. The act No. 254, Acts 1905, p. 667, was void, and conferred no rights on the town or its council to vacate or close any of its streets or alleys. 134 Ark. 366; 120 Id. 214; 121 Id. 610 & Ark. cases cited; 98 Id. 156; 66 Id. 40; 65 Id. 410; 68 Id. 62; 50 Id. 473; 24 Id. 102; 27 Am. & Eng. Enc. 103; 9 Id. 20.

2. When the owner of the land dedicated the streets and alleys to the town, the fee passed to the town forever. 27 Am. & Eng. Enc 117; 21. Fed. 223; 27 Am. St. Rep. 415; 8 Am. Dec. 263; 6 Peters (U.S.) 513; 1 Elliott on Roads and Streets, § 21; Id. § 128; 121 N.C. 350; 3 Colo. 472; 135 Ark. 48.

3. Appellee acquired no title by adverse possession. Her testimony shows that when she enclosed the property it was not for the purpose of acquiring title, but only to protect her hotel properties from the noises of cattle and from the insanitary condition of the street; and that the idea of acquiring title was conceived only after the burning of the old hotel in 1912, which was replaced by the new brick hotel. Her adverse possession, therefore, began after the passage of the act of 1907, Acts 1907, p. 1147, and within its provisions.

There could be no adverse possession until the street was ordered opened. 1 Gray (Mass.) 203; 56 Tex. 514. The rights of the public in a highway are not barred or lost by the failure of the city to act. Elliott on Roads and Streets, § 1188. And it is not every encroachment thereon that constitutes adverse possession. Setting out shade trees, making of sidewalks, fencing in a portion of the street, have been held insufficient. Id., 33 A. 435; 34 Id. 366; 55 Id. 755; 71 Id. 141; 27 Am. Rep. 295; 18 Am. Dec. 86; 69 Am. St. Rep. 212; 29 Id. 500; 27 Id. 295; 88 Ark. 478. City not estopped on account of inaction of officers for a long period. 66 Ark. 40; 85 Id. 524.

4. The act of March 25, 1921, is valid and binding. Our statutes do not provide for a jury trial in matters of condemnation, except where private corporations seek to condemn, and the act is not violative of any provision of the Constitution. It provided a method for the settlement of the litigation in regard to this street. 96 Ark. 411; 32 Id. 553; 78 Id. 432; 77 Id. 171; 40 Id. 290; 62 Ala. 569; 124 Ark. 61; 132 Id. 412; 134 Id. 121, 130; Id. 293; 124 Id. 569; 75 Id. 530; 64 Id. 562; 79 Id. 159; 69 Id. 642.

Cohn, Clayton & Cohn, for appellee.

1. Mrs. Gibson was the heir of the original owner of the land and entitled to claim as such. At most the town acquired nothing more from the platting and dedication than an easement over the soil. 24 Ark. 102; 77 Id. 570, 579. She acquired title by adverse possession, enclosed it with a view to claiming it as her own, kept it enclosed for over fourteen years, built houses--garage and warehouse--thereon. 58 Ark. 151, 156; 73 Id. 106. 111; 76 Id. 48, 59; 84 Id. 52; Id. 516, 520; 133 Id. 527; 144 Id. 208. Title by adverse possession will sustain an action to quiet title. 83 Ark. 535; 20 Id. 508; Id. 542; 12 Id. 822. Cases cited by appellant from other jurisdictions are not in accord with this court and many others. See 2 Dillon Mun. Corporations, 4th Ed., §§ 673, 674. Acts 1907 p. 1147 related to adverse possession which commenced after its passage. 133 Ark. 527, 530.

2. It is not claimed that the town of Hoxie could legally vacate the street in question; but it could, and did, abandon it. 77 Ark. 570; 3 McQuillin, Mun. Corporations, § 1399; 26 L. R. A. 449. It is not the rule in this State that where a street has been dedicated, the fee in the land goes to the city. 24 Ark. 102; 77 Id. 570, 579; 50 Id. 466. Nor in the majority of the States. 3 McQuillin, Mun. Corp. § 1305:

3. Whatever the intention of the legislative body in enacting the Act No. 397, approved March 25, 1921, the act does not in terms seek to deprive the chancery court of jurisdiction of this suit, which was pending therein at the time of the act was passed. Intention to oust jurisdiction will not be presumed. 26 Am. & Eng. Enc. 645; 132 Ark. 481; 33 Id. 778, 785-87; 53 Id. 37, 45; 18 Id. 585, 588; 38 Id. 406. It could not, in any event, deprive the chancery court of jurisdiction in this case, being an action to quiet title. 116 Ark. 490; 95 Id. 628; 80 Id. 145; 109 Id. 250.

4. Act No. 397, Acts 1921, is invalid. It is an act to settle rights of property of a property holder, by a special proceeding, gotten up for that specific purpose. 1 Gill & J. 365; 31 Am. Dec. 72, 97-99. It provides no adequate time in which to appeal. 76 Ark. 184; 97 Id. 116; 134 Id. 294.

OPINION

MCCULLOCH, C. J.

This is an action instituted in the chancery court by appellee against the town of Hoxie to quiet appellee's title to a strip of land in the town, formerly owned by appellee's mother, Mary A. Boaz, and dedicated by the latter to the public as a part of a certain street of the town of Hoxie. The chancery court granted the relief sought by appellee, and an appeal is prosecuted to this court.

Appellee's mother, Mrs. Boaz, formerly owned the land on which the town of Hoxie is situated, and in the year 1883 she caused the same to be platted into lots and blocks, intersected by streets and alleys, and filed the plat for record. Lots were sold according to the descriptions set forth in the plat, and the streets and alleys thus became dedicated to public use.

The property in controversy is a strip 60 feet in width and 291 feet in length, south of block 12, according to the plat filed by Mrs. Boaz, and is a part of Springfield Street between two other streets designated as Texas Street, which is east of block 12, and Maple street, which is west. Mrs. Boaz erected a building on one of the lots in block 12 for use as a hotel. She died, leaving appellee as her sole heir. According to the testimony adduced, the part of Springfield Street on which block 12 abutted was left open for public use, but was little used as a street. It was used so little by the public that it got to be a place where cattle congregated in the evening and at night near the rear entrance to the hotel, and the place became insanitary. It is not contended, however, that the attempted dedication by Mrs. Boaz was not complete, nor that the dedication remained unaccepted by the public. The contention of appellee is that the street was vacated and abandoned, and that all rights acquired under the original dedication were thereby extinguished.

In the year 1905 a petition of certain citizens of the town of Hoxie was presented to the Legislature, perhaps at the instance of appellee, and a special statute was enacted by the legislative session of that year authorizing the town of Hoxie to vacate, by ordinance, this portion of Springfield Street and a certain part of another street contiguous to appellee's land not involved in this appeal. Pursuant to this statute, the town council enacted and published an ordinance on October 6, closing this part of Springfield Street, and within a short time thereafter appellee took possession of the strip of land in controversy and fenced it in connection with her other property in block 12. She has kept the property fenced and has maintained exclusive dominion over it from that time until the commencement of this action. The old hotel building was burned in the year 1912, and was replaced by a brick building, used for the same purpose and still owned by appellee.

The testimony is abundantly sufficient to establish the fact that appellee has continuously held the property since the autumn of 1915, in hostile possession and under a claim of ownership sufficient to completely vest the title in her by limitation unless, under the law and the facts of the case, the statute did not run in her favor.

This court, in an early decision, announced the rule, which has been several times reiterated, that "the interest which the public acquires by the dedication of land for a highway or street is merely an easement or right of passage over the soil, the original owner still retaining the fee, together with all rights of property not inconsistent with the public use," and that "when the streets are vacated or the use abandoned, they revert to the owners of abutting lands." Taylor v. Armstrong, 24 Ark. 102; Packet Co. v. Sorrells, 50 Ark. 466, 8 S.W. 683; Dickinson v. Arkansas City Improvement Co., 77 Ark. 570, 92 S.W. 21.

At the time the adverse possession of appellee began, there was no exemption in the statute of limitation in favor of incorporated towns. A statute was enacted declaring such exemption at the legislative session of 1907 (Acts 1907, p. 1147), but that statute contains a provision limiting its operation to "adverse possession or occupancy commenced or begun after the passage of this act." The effect of this statute was construed and its provisions applied in the case of Madison v. Bond, 133 Ark. 527, 202 S.W. 721. The statute, of course, ran against private rights acquired by individuals under purchases of lots according to the plat filed by Mrs. Boaz. Mebane v. Wynne, 127 Ark. 364, 192 S.W. 221. The fact that appellee acquired possession of the property in controversy pursuant to to the ordinance enacted by the town council vacating the street does not render such possession a permissive one, so as to prevent the statute of limitation from running. It is contended by learned counsel for appellant that the special act of the...