Rohrbaugh v. Mokler

• Decision Date: 29 March 1920
• Docket Number: 956
• Citation: 188 P. 448,26 Wyo. 514
• Parties: ROHRBAUGH v. MOKLER
• Court: Wyoming Supreme Court

188 P. 448

26 Wyo. 514

ROHRBAUGH v. MOKLER

No. 956

Supreme Court of Wyoming

March 29, 1920

ERROR to the District Court, Natrona County; HON. CHARLES E WINTER, Judge.

Action by A. J. Mokler, against E. P. Rohrbaugh, Mayor of Town of Casper, now City of Casper, and others. There was a decree for plaintiff and defendants bring error.

Affirmed.

W. H Patten, for plaintiff in error.

The court erred in admitting opinion evidence as to the necessity, condition or width of a street (5 Ency. Ev. 681). The map and dedications in evidence indicate an intention that the lands should be dedicated as a street intersection (Strong v. Pritchett, 61 N.E. 973; Atlas Lumber Co. v. Quirk, 135 N.W. 172; London, San Francisco Bank v. Oakland, 90 F. 691; Arnold v. Weiker, 40 P. 901). Defendant had burden of proof of vacation (McQuillin, Sec. 1417); there was no record proven of council proceedings authorizing exchange of property; council could not sell a street (St. Paul, Chicago, M. & L. R. R. Co., 68 N.W. 459; San Francisco v. Itsell, 22 P. 74; McQuillin, 1141; C. B. & Q. R. R. Co. v. Quincy, 27 N.E. 192; Hoadley v. San Francisco, 12 P. 125; Elliott, Sec. 942). Council cannot do indirectly what it cannot do directly (Elliott, Sec. 1188; Field v City, 124 N.W. 496; City v. Co., 34 N.W. 197; Town v. Imp. Co., 80 P. 549; McQuillan, Sec. 1335; City v. Tichnor, 53 N.W. 561). In any event the attempted action of the city was ultra vires (McQuillan, 1172; State v. Murphy, 31 S.W. 784; Co. v. City, 91 N.W. 1081; City v. Martin, 68 S.W. 605; State v. Martin, 34 S.W. 51); defendant did not plead estoppel and the defense is not available (Nance v. Ins. Co., R. C. L. 149; Lumber Co. v. Barth, 93 P. 38). The essentials of equitable estoppel are lacking (16 Cyc. 738; City v. Luney, 61 N.E. 1036; City v. Niloon, 53 N.W. 561; Shirk v. Chicago, 63 N.E. 192; Russell v. City, 65 N.W. 1088; Rolston v. Weston, 33 S.W. 326; Wolfe v. Town, 32 N.E. 1017; Elliott, Sec. 1189; City v. Nesler, 37 N.E. 956; Wetherspoon v. City, 13 S.E. 844; Trust Co. v. Wagner, 40 P. 764). The plat offered in evidence shows intention to dedicate the ground to public use.

M. W. Purcell, for defendant in error.

Defendant in error claims under a contract with the city, made in good faith and acquired possession thereunder; the city is estopped (C. R. I. & P. R. Co. v. Joliet, 79 Ill. 26; Lee v. Town, 8 N.E. 763; Joliet v. Werner, 46 N.E. 780). The land surrendered to Mr. Mokler had been vacated by action of the council; failure of the council to make a record thereof cannot operate to the prejudice of Mr. Mokler; the town had authority to vacate the street (Laws 1901, ch. 34, sec. 1 and 2; Ponischil v. Co., 83 P. 317; Glasgow v. St. Louis, 107 Mo. 198; 17 S.W. 743); the contention that all vacant ground left unplatted by owners who filed original plat, was dedicated to the town, is unsound. Mokler acted in good faith and having performed all requirements of his agreement with the city, is entitled to equitable relief.

BEARD, CHIEF JUSTICE. POTTER and BLYDENBURGH, JJ., concur.

OPINION

BEARD, CHIEF JUSTICE.

In this case the plaintiffs in error were enjoined by the District Court from interfering with defendant in error in his possession of a small triangular piece of land adjoining certain lots owned by him in the town, now city, of Casper. From that decree plaintiffs in error bring the case to this court by proceedings in error.

The situation can be best understood by reference to the following plat which is a substantial copy of that part of the original plat of said town in which the subject of this suit is situated. The streets are eighty feet wide, and the full lots are twenty-five feet by one hundred feet. The unbroken lines represent the street and block lines as they appear on the recorded plat. Lots 10, 11 and 12, in block 4, are, and have been since September 5, 1901, owned by Mokler. The small triangular piece of land marked "A" is the land involved in this action. The triangle marked "B" is not numbered or in anywise designated on the original plat either as street, alley, or public ground. The small end of this triangle marked "P. L." is occupied by a "Carnegie" library now under the control of the county. In 1904, J. M. Carey, who claimed to own the triangle "B", gave to Mokler a contract for, or option to purchase this ground. During that year, the town or city, whichever it then was, desired to procure ground for a park and library site, and requested Judge Carey to donate to it said land, which he expressed a willingness to do, but could not on account of his contract with Mr. Mokler. Mokler desired to secure the triangle "A" in order to square up his lots. At a meeting of the town or city council, at which Mr. Mokler was present, it was agreed that he should surrender his contract with Carey and that he should be granted the triangle "A" in consideration therefor. No record seems to have been made on the town records of this transaction, nor was it evidenced by any writing. The town or city took possession of the tract "B", extended or at least opened Durbin Street south to First Street, established a park, of which the triangle, P. L., is a part, vacated First Street south of P. L. and that part of the street enclosed in "A", and erected the library building. Mokler took possession of "A", fenced it, erected some buildings thereon, built a cement sidewalk about it, the grade for which was given him by the city or town engineer, and has ever since been in the exclusive possession thereof, claiming to be the owner. We think the evidence is sufficient to sustain the foregoing statement of the facts.

[SEE ILLUSTRATION IN ORIGINAL]

The city threatened to take possession of the triangle A, and to remove or destroy the improvements Mokler had placed thereon and to arrest him for obstructing the street, whereupon he brought this action, with the result stated. A number of errors are alleged, for which it is urged the judgment should be reversed. It is claimed that the plat shows that the triangle B was dedicated to the public, and, therefore, neither Carey nor Mokler could have any interest in or title to it. The plat was filed for record February 7, 1889, but the record does not disclose when the town of Casper was incorporated, or when or how Carey became the owner of said tract. It does appear, however, that the town never attempted to exercise any control over any part of the triangle B, and recognized Carey's ownership and right to the possession of the same. It applied to him to donate it to the town as a part, at least, of a library site and public park. Whatever doubt might arise from the plat alone as to the intention of the dedicator with respect to this tract, we think is removed by the subsequent acts and conduct of the parties. It is well settled that if the meaning of a contract or instrument is doubtful on its face, the practical construction put upon it by the parties should have great weight in determining its proper construction (J. W. Denio Milling Co. v. Malin, 25 Wyo. 143, 165 P. 1113; Johnson v. Gibson, 78 Ind. 282; Willcuts v. The Northwestern Life Ins. Co., 81 Ind. 300). That rule is applicable to a case of the character which we are now considering (Goode v. The City of St. Louis, 113 Mo. 257, 275, 20 S.W. 1048; The City of Noblesville v. The Lake Erie and Western Railroad Co., 130 Ind. 1, 29 N.E. 484). This is especially true where the parties have for a long time acquiesced in and acted, in good faith, upon such practical construction. Upon the evidence in the record we are of the opinion that the triangle B was not dedicated to the public either as streets or other public grounds. The town council was invested with authority to vacate streets (Par. 4, Sec. 1545, R. S. 1899), that being the statute in force at the time that part of First Street included in the triangle A was vacated. Having vacated that part of the street, and having given Mokler possession and permitted him to remain in possession and to place improvements thereon, and having taken possession of the triangle B and devoted it to public purposes so that it cannot restore Mokler to his former situation, we think the city is estopped from now repudiating the transaction. It may be conceded that title to a street cannot be acquired by prescription, and that mere possession for the statutory period of limitations will not ripen into title. But, as held in many states, the doctrine of...