Putnam v. Dickinson

• Decision Date: 19 April 1966
• Docket Number: No. 8272,8272
• Citation: 142 N.W.2d 111
• Parties: Joseph D. PUTNAM, John W. Crawford, Walter Thompson, and other persons similarly situated, Plaintiffs and Respondents, v. V. V. DICKINSON and Lemuel Anton Braunagel, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 111

142 N.W.2d 111

Joseph D. PUTNAM, John W. Crawford, Walter Thompson, and other persons similarly situated, Plaintiffs and Respondents, v. V. V. DICKINSON and Lemuel Anton Braunagel, Defendants and Appellants.

No. 8272.

Supreme Court of North Dakota.

April 19, 1966.

Syllabus by the Court

1. Section 9--06--07, N.D.C.C., does not preclude proof of the existence of any separate oral stipulation or agreement as to any matter on which the written contract is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.

2. Where a developer of land advertises and otherwise represents by oral statements, a recorded plat, and maps similar to those contained in the advertisements, that a permanent park designated on such maps and plat is provided for the private use of purchasers of lots, persons who purchase lots in reliance upon such representations acquire an easement that such area shall be used in the manner designated.

3. A subsequent purchaser of a servient tenement is bound to take notice of rights that may be evident upon an inspection of the premises as well as those of which he may learn by an inspection of the records; and where a reasonably careful inspection of the premises followed by inquiry would disclose the existence of an easement, the grantee of the servient tenement takes title subject to the easement to the extent that his grantor is bound thereby.

4. For reasons stated in the opinion, the plaintiffs were not estopped from challenging the defendants' rights by the proceedings had in connection with the annexation to the city.

5. A negative easement does not entitle the owner of it to enter upon the servient tenement, but it does entitle him to compel the possessor of the servient tenement to refrain from doing things upon the servient tenement that he would otherwise be entitled to do. An affirmative easement, on the other hand, authorizes the owner thereof to enter upon the servient tenement and do affirmative acts which, if no easement existed, would give rise to a right of action.

Duffy & Haugland, Devils Lake, for defendants and appellants.

Traynor & Traynor, Devils Lake, for plaintiffs and respondents.

TEIGEN, Chief Justice.

This is an action by Joseph D. Putman, John W. Crawford, and Walter Thompson, as well as in behalf of other persons similarly situated, against V. V. Dickinson and Lemuel Anton Braunagel. By this action the plaintiffs seek declaratory relief determining the legal relations between the parties and the status relative to an area of land referred to as Maherwood Park and two strips abutting on each side thereof. This parcel of land is a part of a development area in which the plaintiffs are the owners of lots bordering on either side of the subject parcel. The plaintiffs also seek a permanent injunction restraining and enjoining the defendants from interfering with or preventing their use of the subject parcel for private park purposes with ingress and egress thereto from their respective lots. The trial court rendered judgment in favor of the plaintiffs. This appeal is prosecuted from that judgment, and a trial de novo is demanded.

In 1954 one Howard Maher announced through advertisements published in the Devils Lake Daily Journal, the Devils Lake World, and the Grand Forks Herald that the Maher Trust was opening a planned, suburban-type development for the construction of family homes. These advertisements contain a map of the development, part of which depicts two areas marked 'PARK.' These park areas are girded by strips which are apparently intended as streets or alleys, although no words designating them as such appear on the map. A row of lots is situated on the west and east sides of the park areas, separated therefrom by the strips mentioned. These advertisements also contain the following statement: 'Part of the area is reserved for an elementary school and three permanent park areas are provided to purchasers of lots.' The map depicted in these advertisements was not filed for record.

Nothing further appears to have been done with the property until 1956 when Maherwood Park Subdivision and Evergreen Lane were platted. The pertinent part of this plat depicts a private street running parallel to the quarter line. Lots 1 through 10 of Maherwood Park Subdivision lie contiguous to and east of the private street. No park areas, such as those included in the 1954 advertisements, are shown on this plat, nor is there any reference to any such areas in the proprietor's certificate. This plat was filed for record in the office of the Register of Deeds of Ramsey County in 1956.

Lots were then sold and sales promoted through further advertisements. These advertisements cover the period of 1956 to 1958, and in each of them the development is referred to as Maherwood Park. There is no mention in these advertisements concerning any park areas.

A plat of Melody Lane Subdivision was filed in the office of the Register of Deeds of Ramsey County on November 6, 1958. This plat also shows Maherwood Park Subdivision, which was platted in 1956. The salient part of this plat is reproduced here.

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

Although the plat differs in certain particulars, it bears a striking resemblance to the map contained in the 1954 advertisements. The area in dispute comprises the two rectangular tracts designated as 'MAHERWOOD PARK' as well as the twenty foot strips abutting on either side thereof. According to the sectional description contained in the proprietor's certificate accompanying this plat, Melody Lane Subdivision encompasses that area lying east of and contiguous to Maherwood Park Subdivision. Thus, Maherwood Park and the twenty foot strips adjacent thereto, the areas involved in this litigation, are by this description made a part of Melody Lane Subdivision.

In 1962 property owners began proceedings for the annexation of Maherwood Park Subdivision, Melody Lane Subdivision, and Evergreen Lane Subdivision into the City of Devils Lake. All three of these subdivisions were platted by Maher. In the deeds given to these owners, Maher had covenanted to construct and maintain roads and streets. The petition to annex the area, filed with the City Auditor on July 9, 1962, contains three agreements which were circulated by lot owners and presented to the City. Each agreement provides that the property owners will waive any claims against Maher for the maintenance of any streets or alleys within these subdivisions in the event he should dedicate them for public use. The phrases 'and alleys' and 'or alleys' have been stricken wherever they appear in these agreements. John Crawford, one of the plaintiffs testified on cross-examination that the property owners had the agreements drawn up to relieve Maher of any obligation to maintain the streets and alleys. Crawford further testified that when he signed the agreement none of the words had been stricken.

On July 11, 1962, Maher executed a dedication of the streets in the area. No mention is made therein of any alleys, and the streets dedicated are described with particularity.

Defendants Dickinson and Braunagel claim title to Maherwood Park by virtue of a warranty deed from Maher dated April 3, 1964. The land conveyed by this deed is described as 'Lots Eleven and Twelve of Melody Lane Subdivision of Maherwood Park and Maherwood Park.' A short time after the defendants acquired title to Maherwood Park, this action was commenced by the plaintiffs; thereafter, the defendants obtained a quit claim deed from Maher dated June 5, 1964, to the twenty foot strips abutting Maherwood Park.

The amended complaint contains the following allegations:

I.

That this action is brought on behalf of the plaintiffs as well as on behalf of each and all other persons similarly situated who are the owners of property described as Lots One through Ten in Maherwood Park Subdivision and Lots One through Ten of Melody Lane Subdivision, which subdivisions are adjacent to Maherwood Park in the City of Devils Lake, Ramsey County, North Dakota. That such persons are so numerous as to make it impracticable to bring them all before the Court; and the right which is the subject of this action, is common to all of the owners of said property.

II.

That the plaintiff, Joseph D. Putnam, is the owner of Lot Two (2) of Melody Lane Subdivision in the City of Devils Lake, Ramsey County, North Dakota. That the plaintiff, John W. Crawford, is the owner of Lot Five (5) in Maherwood Park Subdivision to the City of Devils Lake, Ramsey County, North Dakota. That the plaintiff, Walter Thompson is the owner of Lot Three (3) in Melody Lane Subdivision of the City of Devils Lake, Ramsey County, North Dakota. That all of the plaintiffs herein are residents, electors and taxpayers of the City of Devils Lake, Ramsey County, North Dakota.

III.

That the property owned by the plaintiffs was subdivided by Howard Maher Trustee, who acknowledged the same before a person authorized to take acknowledgments, and caused the same to be filed in the Office of the Register of Deeds of Ramsey County, North Dakota, on November 6, 1958, and recorded therein in Book 4 of Plats on page 136. That said plat discloses that Maherwood Park is situated between Maherwood Park Subdivision and Melody Lane Subdivision; and that Maherwood Park is an open, undivided area, except for one forty foot street which divides the same into 600 foot area and another 400 foot area. That Maherwood Park is not divided into lots in said plat.

III. (a)

That located on the east and west sides of Maherwood Park are two twenty foot alleys or streets. That said streets lie between the property owned by the plaintiffs and Maherwood Park. That said twenty foot streets have never been vacated by...