Appeal
from superior court of Grand Rapids; EDWIN A. BURLINGAME
Judge.
CAHILL
J.
This
action was brought by plaintiff in April, 1888, to recover in
ejectment the following described premises, which are now
occupied and claimed by the city of Grand Rapids as a public
park, under the name of "Crescent Park." The
premises described in the declaration are as follows
"That part of lots two, (2,) three, (3,) six, (6,) and
seven (7) of block twenty-three (23) of Dexter fraction of
the city of Grand Rapids, according to the recorded plat
thereof, lying east and north of the westerly and southerly
line of a certain street running through said lots, called
'Crescent Street;' also a strip of land bounded on
the north by lot twenty-two (22) of said Dexter fraction, on
the east by Bostwick street, on the south by said lot two (2)
of block twenty-three, (23,) and on the west by Crescent
avenue, being a strip of land formerly a part of Bronson
street, now called 'Crescent Avenue;' also lot
twenty-two (22) of block twenty-two (22) of Dexter fraction
aforesaid,-which premises the plaintiff claims in
fee-simple."
Both
parties claim the property through Mrs. Adeline M. Johnson, who was admitted to have been the owner in
1858. She conveyed the property in 1864 to Orrin S. Camp, by
warranty deed, and Mr. Camp conveyed to plaintiff in 1887 by
quitclaim deed. The city claims that the plaintiff cannot
legally assert title to the land in question, because-
First, Mrs. Johnson dedicated the property to the
public as a park in 1858; second, because Mr. Camp,
to whom Mrs. Johnson had conveyed the property by his acts in
1875 and 1881, had estopped himself from making claim to the
property; and, third, because the plaintiff, as a
member of the board of public works from 1881 to 1884,
inclusive, during the time that the property was being
improved by the city as a park, had consented to and actually
participated in such improvements, and was thereby estopped.
The
plaintiff, in addition to the original title, showed a
tax-title to himself for state taxes of 1873. The defendant
also showed tax-titles to the city for special taxes assessed
against the property in 1875, 1876, 1880, 1881, and 1882, but
all these tax-deeds were admitted on the trial to be void for
irregularities, and neither party claims title under them.
The case was tried before Hon. EDWIN A. BURLINGAME, judge of
superior court of Grand Rapids, without a jury, who made and
filed written findings of fact and of law, upon which a
judgment was entered in favor of the defendant. The case is
brought to this court on exceptions to such finding, and also
on exceptions to the admission of evidence. There are only
three questions open to us upon the record. They are:
First. Is the finding of facts supported by
evidence? Second. Was any incompetent testimony
admitted and considered by the court in reaching a conclusion
upon the facts? Third. Do the facts found support
the judgment?
Upon
the question of the dedication of this land by
Mrs. Johnson to the city for its use as a park in 1858, Judge
BURLINGAME found the facts to be as follows:
"(4)
On the 14th day of October, 1858, residents and property
owners on Bostwick and Bronson streets petitioned the
common council of the city of Grand Rapids to vacate that
part of Bronson street in said city lying between the west
line of Bostwick street and the east line of the alley
running north and south through blocks twenty-two and
twenty-three, Dexter fraction, and to establish, in place
of said street so discontinued, a circular street
designated on the map annexed to and accompanying this
petition. [For a map showing situation of streets and
premises, see the plat at the close of this opinion.] Said
circular street, asked to be substituted in place of the
vacated street, runs around said vacated street in the form
of a crescent, in a north-easterly and south-easterly
direction, from the east line of said alley to the west
line of said Bostwick street, and is equidistant from the
said vacated street. The shape of the street asked to be
substituted is that of a crescent, and that portion of it
lying south of the center line of the vacated street is
called, in this case, 'the south arm of the
crescent;' and that north, 'the north arm.'
There were two petitions asking for this change presented
to the council, one of which was signed by Geo. K. Johnson,
Francis H. Cuming, and twelve others; the other, by Peter
R. L. Pierce and thirty-one others. The premises in
controversy are situated between the two arms of the
crescent, as above designated. The plaintiff claims title
and right of possession by deed from
Orrin S. Camp, of date October 24, 1887, who received a
conveyance of said premises, with others, from Geo. K.
Johnson and Adeline M. Johnson, his wife, October 3, 1864,
said Adeline M. Johnson being the owner thereof in fee.
"(5)
Bronson street, at the time of the presentation of these
petitions to the common council, extended from Canal street
on the west, to Union street on the east. The natural
surface of the ground was comparatively level from Canal
street east to Division street, and from Division street
east to the alley running north and south through said
blocks twenty-two and twenty-three, Dexter fraction,
(between Bostwick street and Division street,) the ascent
was easy; but at said alley, and from that point east to
the west line of Bostwick, the ascent was abrupt, and the
street impassable by reason thereof. It was an immense hill
of shifting dry sand from the alley, up, steep and
precipitous, extending for a long distance north and south
of said Bronson street, and the land on each side next to
said Bronson street, between the west line of Bostwick
street and said alley, and was of little or no value in its
then condition.
"(6) The petitions mentioned in the second
paragraph of these findings were referred by the common
council to its committee on streets at the same date of their
presentation to that body, viz., on the 14th day of October
1858. On the 21st day of October, 1858, the said Francis H.
Cuming and wife and the said Geo. K. Johnson and wife
presented to the said common council a deed to the city of
Grand Rapids of the grounds covered by said proposed circular
street asked for in said petition, upon the back of which
deed was a profile of said circular street. The consideration
of said deed was the sum of one dollar, and the vacation and
discontinuance of so much of Bronson street as lies between
lot number two of block twenty-three, and lot number
twenty-two of block number twenty-two, of Dexter fraction;
being that part of such Bronson street lying between the west
line of Bostwick street and the east line of the alley
running north and south through blocks twenty-two and
twenty-three. The committee on streets, to whom was referred
the petition of G. K. Johnson and others relative to the
discontinuance of 'a portion of Bronson street, and
laying two circular streets in place thereof,' reported
as follows: 'That they believe the prayer of the
petitioner should be granted, provided the two circular
streets shall be made according to the profile on the back of
the deed submitted this evening, and that the ground included
within and between said streets shall be secured to the city,
always to be kept as an open park, without buildings of any
kind thereon.' This report was then and there (on the
21st day of October, 1858) accepted and adopted by the common
council. The deed from Cuming and wife and Johnson and wife
was not presented until after the adoption of said report,
and of the resolution vacating Bronson street, and
establishing Crescent street, and, when presented, was
accepted. It was then moved that the said deed presented this
evening be recorded. Motion to lay same on the table carried.
At the same meeting, after the adoption of said report and
following it, said common council took proceedings to vacate,
discontinue, and close forever so much of Bronson street as
lies between the west of Bostwick street and the east line of
the alley running north and south through blocks twenty-two
and twenty-three, Dexter fraction, in the city of Grand
Rapids, and did then and there vacate, discontinue, and close
the same. The said circular streets were established at the
same time in the place and stead of said vacated portion of
said Bronson street, and were called 'Crescent
Avenue' by said common council, and have been known as
such ever since. That after the action of the council as last
above, but at the same meeting, the common council adopted
the following resolution: 'Resolved, that when that
portion of Bronson street east of Division
street, and the street which is now designated as
"Crescent Avenue," are graded, the line of grade
shall be uniform; that is to say, from the grade of Bronson
street, at its intersection with Division street, as
established, to the intersection of Crescent avenue with
Bostwick street, shall be a uniform ascent.' That, after
the adoption of the foregoing resolution, a motion was made
to reconsider the action of the council, laying the said deed
from Johnson and Cuming on the table, which motion was lost.
On the 28th day of October, 1858, the then proprietors of the
land through which that portion of Bronson street vacated by
the common council of said city runs, and also of the land
through which said new street called 'Crescent
Avenue,' connecting said Bostwick with said Bronson
street, runs, in a written communication to said council,
acknowledged that they had had due notice of such vacation of...
