Ruffner v. Phelps

• Decision Date: 18 June 1898
• Citation: 46 S.W. 728,65 Ark. 410
• Parties: RUFFNER v. PHELPS
• Court: Arkansas Supreme Court

46 S.W. 728

65 Ark. 410

RUFFNER v. PHELPS

Supreme Court of Arkansas

June 18, 1898

Appeal from Lawrence Circuit Court in Chancery, Eastern District RICHARD H. POWELL, Judge.

STATEMENT BY THE COURT.

In 1874 W. M. Ponder, who was the owner of the land on which is situated the present town of Walnut Ridge, Lawrence county made a plat of the town defining blocks, lots, streets and alleys. Among others was defined "Vine Street," involved in this suit. The plat was duly recorded. In 1880 upon the petition of W. M. Ponder et al., the town of Walnut Ridge, including the area covered by the plat supra, was incorporated. After the plat was recorded, Ponder sold off lots, and in his deeds recognized, in describing the land the various subdivisions of blocks, lots and streets. No lots were sold on the part of Vine street involved in this suit which was never opened nor used as a street. In 1886 the council of Walnut Ridge, by a vote of a majority of its members, to-wit: W. M. Ponder, A. C. Phelps, and H. R. Wrenn, consented to the closing of Vine street. In 1887, W. M. Ponder sold a tract of land, including that part of Vine street in controversy, to S. Ruffner, describing same by metes and bounds. Ruffner enclosed the entire tract, including that part of the street involved, and same remaining enclosed until 1891, when he sold a portion of it, including eight feet of "Vine street," to A. C. Phelps, who took from his vendor, Ruffner, the following obligation: "Whereas, I have this day sold and conveyed to A. C. Phelps, the following property situate in the town of Walnut Ridge, Lawrence county (describing it by metes and bounds, said description embracing in the tract eight feet of Vine street). Now, said real estate includes alleys and parts of streets of said town which are now closed and unused, now, if at any time said streets or alleys, or either, are opened, by authority of law, I hereby agree to pay and refund to the said A. C. Phelps such sums as will be in proportion to the amount paid for said land. Given under my hand this 8th day of September, 1891."

After this an order was made by the town council, upon application of Phelps, to reopen said street; and, in pursuance of said order, Phelps opened the eight feet of Vine street included in his purchase from Ruffner. But Ruffner refused to open that part of the street on his land, to-wit, about 52 feet, the whole street being 60 feet wide. This suit is brought by Phelps to compel Ruffner to open up said portion of the street, and to restrain him from further obstructing same. The court rendered a decree to that effect, and this appeal was taken.

Reversed and dismissed.

Jas. K. Gibson and Chas. Coffin, for appellant.

The remedy in cases of public nuisance affecting a common ight is by a proceeding instituted by some public officer, on behalf the public. Hence a private individual, as such, cannot maintain an action to open up a public street. 40 Ark. 83; 41 Ark. 526; 50 Ark. 486. He must allege and prove special damages. 50 Ark. 486. Appellee is estopped to ask that the "street" be opened, for the reason that, as a member of the council, he voted to close the street, and his purchase of the abutting property was subsequent to, and made with full knowledge of, these facts. 3 Wash. R. Prop. 70; 51 Ark. 491; 18 O. St. 169. A vendee cannot dispute his vendor's title. 447 Ark. 219; 10 So. Rep. 797; 3 Wash. R. Prop. p. 120, § 51. No lots abutting on the "street" in question have been sold, and there never has been an acceptance by the proper authorities. Dill. Mun. Corp. p. 630; 63 Ark. 5.

Jos. W. Phillips, J. N. Beakley and S.D. Campbell, for appellee.

The owner of the land placed on record a town plat containing the lots, blocks, streets, alleys, etc., filed a petition in county court asking that the town be incorporated, and sold lots to various persons, describing it according to the plat. This was a sufficient dedication. 25 Am. & Eng. Corp. Cas. 268. The proof shows special damage to plaintiff. Hence, he is entitled to maintain his action. 40 Ark. 83.

OPINION

WOOD, J., (after stating the facts).

A purpresture is an encroachment upon the street, which the municipality may or may not tolerate at its option, if the same be not also a public nuisance. But if said encroachment be such as to inconvenience the public, the municipality o any individual especially injured thereby may abate and restrain same by injunction. Welborn v. Davies, 40 Ark. 832; Coke, Lit. side p. 277b; 1 Wood, Nuis. §§ 81, 97, et seq.; 1 High, Inj. § 761, et seq.; Burnham v. Hotchkiss, 14 Conn. 311; 1 Story, Eq. Jur. § 921, et seq.

We do not decide, but it may be conceded, that the inclosure complained of is not merely a purpresture but also a public nuisance. Still, under the peculiar facts of this case, appellee cannot invoke the aid of a court of equity for its abatement. As was said by Judge Storrs in Bigelow v. Hartford Bridge Co., 14 Conn 565, at page 580, speaking of the right of an individual...