Schneider v. Jacob

• Decision Date: 22 September 1887
• Citation: 86 Ky. 101,5 S.W. 350
• Parties: SCHNEIDER and others v. JACOB and another.
• Court: Kentucky Court of Appeals

5 S.W. 350

86 Ky. 101

SCHNEIDER and others v. JACOB and another.

Court of Appeals of Kentucky.

September 22, 1887

Appeal from Louisville chancery court.

Brown Humphrey & Davie, N. G. Rogers, and J. W. McGee, for appellants.

John B Baskin, for appellees.

BENNETT J.

Prior to 1837, John I. Jacob and Garnett Duncan, preparatory to selling a piece of land which they owned, adjoining the city of Louisville, laid the same off into lots, streets, and alleys. They also prepared and recorded in the county court clerk's office a map or plat, which designated the said lots, streets, and alleys. On the plat this piece of ground was called "Jacob & Duncan's Western Addition." In this "Addition" Main street was laid off, which was designated on the map as running east and west; and Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth streets were laid off and designated on the map as intersecting Main street, and running north and south. On the twenty-eighth of October, 1837, Jacob and Duncan sold, by deed duly acknowledged and recorded, to Jacob Marcell, a lot of ground which the deed describes as lying on the east side of Twenty-Sixth street, and bounded by Main and Twenty-Sixth streets and an alley. On the fourteenth of October, 1837 Jacob and Duncan sold, by deed duly acknowledged and recorded, another lot of ground, which was included in their plat, to Jacob Marcell. This lot of ground is described in the deed as lying on the east side of Twenty-Sixth street and bounded by Main and Twenty-Sixth streets and an alley, etc. There was no reservation in either deed of Twenty-Sixth street or the alley. A portion of the appellants own these lots by a regular derivation of title from the original vendee, Marcell; and the boundaries of the lots in each conveyance are the same as those given in the deeds from Jacob and Duncan to Marcell. In 1836 Jacob and Duncan sold by deed, which was duly acknowledged and recorded, a parcel of ground abutting on Twenty-Sixth street, and lying south of that sold to Marcell. In this deed Jacob and Duncan reserved Twenty-Sixth street. The vendee failing to pay for this parcel of ground, Jacob purchased it at commissioner's sale for the satisfaction of the purchase money; and, this property having been allotted to some of Jacob's devisees in a division of his property, said devisees sold the same to F. and John Bogens, a portion of the appellants. In their deeds of conveyance the property is described as being bounded by Twenty-Sixth street, etc.; but Twenty-Sixth street is not reserved in either of said deeds. Many years after said conveyances by Jacob and Duncan, the city of Louisville, said "Addition" having become a part of the city, opened a street which was designated as Twenty-Sixth street, west of the strip of ground designated on the Jacob & Duncan map as Twenty-Sixth street. The strip of ground, which was designated on the Jacob & Duncan plat as Twenty-Sixth street, was never opened and used as a public street.

The appellees instituted suit in the court below against the appellants for the purpose of recovering the strip of ground designated on the Jacob & Duncan plat as Twenty-Sixth street. The appellants contested the appellees right to the strip, upon the ground that by virtue of the conveyances above mentioned they owned to the center of the street. The lower court decided in favor of the appellees. The appellants have appealed to this court.

The appellants resist the appellees' claim to the strip of ground in controversy upon the ground that by the act of dividing said parcel of ground into lots, streets, and alleys, adjoining the city of Louisville, with a view of making the same a part of the city of Louisville, and then selling the lots to purchasers, referring in the deeds made to them to the streets and alleys thus laid off, and making them the boundary of the lots thus sold and conveyed, Jacob and Duncan dedicated the streets and alleys to the use of the purchasers and the public. It is well settled that where the owner of land lays out and establishes a town with various plats of spare ground, such as streets and alleys, and sells lots with clear reference to that plan, he thereby conclusively dedicates such streets and alleys to the use of the purchasers and public. The owner, by his plat of the town which defines the streets and alleys, and by his deeds of conveyance to the purchasers which call for these streets and alleys as boundaries to the lots sold, covenants with the purchasers that the streets and alleys are dedicated to their use and that of the public. Rowan v. Portland, 8 B. Mon. 232-237; Wickliffe v. Lexington, 11 B. Mon. 163. And the principle is also well settled that where the owner of land lays the same out into building lots, streets, and alleys and exhibits a map of it, which defines the lots, streets, and alleys, though the streets and alleys are not yet actually opened, and sells the lots as bounded by such streets or alleys, this is an immediate dedication of such street or alley to the use...