Siegenthaler v. Newton, Case Number: 22887

Decision Date15 October 1935
Docket NumberCase Number: 22887
Citation1935 OK 998,174 Okla. 216,50 P.2d 192
PartiesSIEGENTHALER v. NEWTON et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Dedication--Sufficiency of Dedication of Street or Road--Intention in Dedicate.

Where the owner of property plats the same and files his dedication of the streets shown thereon, as required by the provisions of article 7, ch. 33, Okla. Stats. 1931, the failure of the dedicator to affix a name to a strip of ground shown on such plat, where it is clear that he intended to dedicate the same as a public street or road, does not invalidate the dedication of said strip of ground as a public street or road.

2. Same--Dedication of Strip Constituting Cul-De-Sac.

A strip of ground, one end of which opens into a public street or road, the other of which ends at the boundary line of private property, thus constituting a cul-de-sac, may be dedicated to the public as and for a street or road.

3. Same.

The fact that one end of such strip of ground is indicated on said plat by a solid black line is not conclusive that it was the intention of the dedicator that said end of said strip of ground was to remain closed.

4. Same--When Dedication of Streets Perfected.

When lots are sold with reference to a recorded plat, a dedication of the streets as laid out in such plat is deemed perfect, without any affirmative official or other action on the part of the municipality or public.

5. Nuisance--Right of Action for Abatement not Barred by Laches or Estoppel.

Where a party is specially injured by a pubic nuisance and brings an action to abate the same, no lapse of time will either legalize the same or estop the injured party to bring an action to effect its abatement.

6. Dedication--Exclusive Statutory Method of Revesting in Dedicator Title to Streets.

Where the owner of property plats the same and files his dedication of the streets shown thereon, as required by the provisions of article 7, ch. 33, Okla. Stats. 1931, the only way in which title to any portion of such streets may be revested in the dedicator, or his grantees, is under and by virtue of the provisions of said article 7, chapter 33.

7. Highways--Right of Abutting Owner to Enjoin Obstruction.

The owner of land abutting upon a public highway, which is obstructed so as to cut off or materially interrupt his means of ingress and egress to and from his property, suffers a special injury, which entitles him to maintain an action to enjoin such public nuisance, although another highway upon which his property abuts affords him another and equally good or better way of ingress and egress.

Appeal from District Court, Oklahoma County; Tom G. Chambers, Judge.

Action by Henry Newton and Mary A. Newton against F. H. Siegenthaler. Judgment for plaintiffs, and defendant brings error. Affirmed.

Shirk, Danner & Phelps, Charles E. Earnheart, Samuel O. Neff, Howard Davis, and Elizabeth Cox, for plaintiff in error.

Everest, McKenzie, Halley & Gibbens, for defendants in error.

PER CURIAM.

¶1 The defendants in error, hereafter referred to as plaintiffs, recovered a judgment against the plaintiff in error, hereafter referred to as defendant, adjudging and decreeing a 25-foot strip of ground along the east line of the north half of the northwest quarter of the northwest quarter of section 34, township 12 north, range 4 west, in Oklahoma county, Okla., to be a public street or highway, and enjoining the plaintiff in error from obstructing the use thereof as such, from which the latter appeals. The following questions are involved in the appeal: (1) Was there a sufficient statutory dedication of said strip of ground to constitute same a public street or highway? (2) If there were not such statutory dedication, was there sufficient common-law dedication thereof to constitute said strip of ground a public street or highway? (3) If there were not either a sufficient statutory or common-law dedication of said strip of ground to constitute same a public street or highway, did the plaintiffs, under the facts, have an implied roadway easement over same? (4) If said strip of ground became a public street or highway, either by statutory or common-law dedication, or if the plaintiffs had a roadway easement over the same, had said strip ceased to be a public street or highway, or had such easement been lost by abandonment, misuser, or nonuser? (5) Did the obstructions on said strip of ground result in special injury to the plaintiffs, distinct from that suffered by the general public, so as to entitle them to maintain this action? (6) Did the trial court err in refusing to vacate said strip of ground as a public street or highway upon the defendant's crosspetition therefor? After stating the facts, we will dispose of said questions in the order enumerated.

¶2 Junie Spain and J. M. Spain, husband and wife, were the owners of the northwest quarter of the northwest quarter of section 34, township 12 north, range 4 west, in Oklahoma county, Okla. On the 8th of October, 1909, they filed for record and caused to be recorded in the office of the register of deeds of Oklahoma county, an instrument, dated the 14th day of September, 1909, and acknowledged before a notary public, which recited that they had caused the north half of the aforesaid 40 acres to be subdivided into "blocks and streets," as shown on an annexed map or plat, which 20 acres they designated and named, "Spain's Crystal Springs Addition," and that they dedicated "the streets as shown, on said map or plat to the public." Following the aforesaid acknowledgment was a certificate of Warren E. Moore, dated September 14, 1909, and acknowledged before a notary public, reciting that he was a civil engineer, that at the instance of the Spains he had made the above-described subdivision, and that the annexed map or plat was a correct representation thereof. The aforesaid annexed map or plat was entitled: "Spain's Crystal Springs Addition, being a subdivision of the N. 1/2 of the N.W. 1/4 of the N.W. 1/4 of sec. 34, T. 12 N., R. 4 W." Said map or plat shows the northwest corner of said' subdivision to be the northwest corner of said section 34. The south line of said 20 acres is indicated by a solid black line, while the east, west, and north lines thereof are indicated by dashes and dots. Said subdivision shows four adjoining rectangular blocks, each enclosed in solid black lines, and, going from east to west, said blocks are designated by the figures 1, 2, 3, and 4. The south lines of said blocks are a part of the south line of the aforesaid 20 acres. Each of these blocks is 317.1 feet wide, that is, from east to west, and 630.6 feet long, that is, from north to south. Along the north side of said 20 acres and immediately north of the north lines of the aforesaid four blocks and extending the full length of said 20 acres, is a strip of ground 33 feet wide, which, of course, is one-half of a section line road. Likewise, along the west side of said 20 acres and immediately west of the west line of block 4 is a strip of ground 33 feet wide, which, of course, is one-half of a section line road. Along the east side of said 20 acres and immediately east of the east line of block 1 is a strip of ground 25 feet wide. This is the strip of ground in controversy. The aforesaid strips of ground along the north, east and west sides of said 20 acres are not named, merely the dimensions thereof being given.

¶3 The record fails to disclose the exact location of the above addition with respect to Oklahoma City, or whether same is contiguous or noncontiguous thereto. The defendant, in his brief, repeatedly asserts that said addition is outside of Oklahoma City, and at one place states that the same is noncontiguous thereto. Both parties, in their briefs, assert that the strip of ground along the north side of said addition is a part of an extension of Tenth street, one of the streets of Oklahoma City; however, practically all the witnesses who testified stated that the north end of the strip of ground in controversy opened into said Tenth street. There is a residence upon block 1, erected some time between March 25, 1910, and October 13, 1922, but whether there are any improvements upon the other blocks of said addition was not shown.

¶4 On March 25, 1910, the Spains, by warranty deed, conveyed to Jessie Harrah blocks 1 and 2 of the above addition, and, by mesne conveyances, the defendant became the owner of block 1 on October 13, 1922, and of block 2 on July 27, 1923, since which respective dates he has been in the possession thereof. All the conveyances in the defendant's chain of title were made with reference to the above map or plat. On April 4, 1917, the Spains, by warranty deed, conveyed the south half of the northwest quarter of the northwest quarter of section 34, township 12 north, range 4 west, Oklahoma county, Okla., to Mamie E. Green, and the plaintiff, Henry A. Newton, by mesne conveyances, acquired title thereto on February 14, 1920, since which date he has been in the possession thereof. What disposition, if any, the Spains have made of blocks 3 and 4 is not shown.

¶5 The residence of plaintiffs is located south of the above block 4 and near the southwest corner of the 20 acres owned by them. There are no improvements on the east ten acres of said 20 acres, but there is a pond or lake thereon. In going to and from the plaintiffs' residence they traveled the section line road along the west side of their 20 acres, which road extends along the west side of said addition and intersects the section line road running east and west along the north side thereof, and which, as before stated, was referred to by the witnesses as Tenth street.

¶6 Prior to the date of the defendant's purchase of block 1, on October 13, 1922, the strip of ground in controversy was fenced along the south, east and west sides thereof, and there was a wire gate, consisting of three strands of wire, at the north end. Some of the...

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