Sowadzki v. Salt Lake County

• Decision Date: 11 June 1909
• Docket Number: 2003
• Citation: 36 Utah 127,104 P. 117
• Court: Utah Supreme Court
• Parties: SOWADZKI v. SALT LAKE COUNTY

104 P. 117

36 Utah 127

SOWADZKI v. SALT LAKE COUNTY

No. 2003

Supreme Court of Utah

June 11, 1909

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Paule Sowadzki against Salt Lake County.

Judgment for defendant. Plaintiff appeals.

REVERSED, WITH DIRECTIONS.

M. E Wilson and E. A. Walton for appellant.

APPELLANT'S POINTS.

Under the law in force in the Territory of Utah, at the time of the alleged dedication, to-wit, October 30, 1891, there was no statutory authority for filing the alleged plat, because the land described in said plat and comprised within the limits of the so-called Wabash Avenue was situated outside of the limits of any city, town or village. See volume 1, p. 287 sec. 146, Utah Compiled Laws 1888. See Laws of 1890, pp. 76 77, chapter 50; Laws of 1894, pp. 1-14. A common law dedication is not alleged in the counterclaim of the defendant. A defective statutory dedication would give to the public an easement only. (City of Leadville v. Colorado Mining Company, 86 P. 1035.) The dedication, even if made, was not accepted by the public, and more than a reasonable time having elapsed, prior to 1907, an acceptance at that time would be null and void and without legal effect. (Elliott on Roads and Streets, sec. 150; Wilson v. Hall, 7 Utah 90; Hayward v. Manser, 70 Cal. 476, 13 P. 141; People v. Read, 81 Cal. 70, 22 P. 474; Niles v. Los Angeles City, 125 Cal. 572, 58 P. 190.) The dedication claimed in the counterclaim of the defendant fails because of the plaintiff's defense of abandonment. (Sec. 2070, Utah Comp. Laws 1888, pp. 738, 739; Olien v. Denver & Rio Grande Railroad Company, 25 Colo. 177, 53 P. 454; City of Leadville v. Bohm Mining Company, 86 P. 1038; Meyers v. Daubeniss, 23 P. 1027, 84 Cal. 1; Murphy v. King County, 88 P. 1115 [Wash.].) Salt Lake County is estopped from claiming a highway. (Thorp v. Clanton, 85 P. 1061; Jones on Easements, sec. 241; Schooling v. City of Harrisburg, 71 P. 605, 42 Ore. 494; Peoria v. Central Nat. Bank, 224 Ill. 43, 79 N.E. 296, 12 L.R.A. [N.S.] 687; Oliver v. Synhorst, 86 P. 376, 7 L.R.A. [N.S.] 243; Laws of Utah 1899, p. 55, sec. 1.)

O. W. Carlson and Stephens, Smith & Porter for respondent.

RESPONDENT'S POINTS.

Respondent cited the following authorities. As to acceptance: Meier v. Portland C. Ry. Co., 19 P. 610 (Ore.); City of Osage v. Larkins, 19 P. 659 (Kans.); Augusta v. Tyner, 197 Ill. 242, 64 N.E. 378; Briel v. Natchez, 48 Miss. 423; 13 Cyc., pp. 455, 457, 458; Baldwin v. City of Buffalo, 35 N.Y. 384; Shea v. City of Ottumwa, 24 N.W. 582 (Iowa); Town of San Leandro v. Le Breton, 13 P. 407 (Cal.); Fulton v. Town of Dover, 6 A. 633 (Del.): Coffin et al. v. City of Portland, 27 F. 412 (Ore.); Grogan v. Town of Hayward, 4 F. 164, 165 (Cal.); So. Rep. vol. 5, pp. 622, 623 (Miss.); Land Co. v. Mayor, etc., 36 N. J. Law 540; Dummer v. Jersey City, 20 N. J. Law 86; Mayor, etc., v. Canal Co., 12 N.J. Eq. 533; Irwin v. Dixion, 9 How. 10; Trustees v. Cowen, 4 Paige 510; Hannibal v. Draper, 15 Mo. 639; In re Seventeenth St., 1 Wend. 266; In re Lewis St., 2 Went. 472; Wyman v. Mayor, etc., 11 Wend. 486; Maywood Co. v. Village of Maywood, 6 N.E. 870; Zearing v. Raber, 74 Ill. 409; Elliott on Roads and Streets, pp. 86, 87, 89; Hoboken Land Co. v. Hoboken, 36 N. J. L. 540; Shea v. The City of Ottumwa, 67 Iowa 39. As to estoppel: Sims v. Frankfort, 79 Ind. 446; Ralston v. Weston, 46 W.Va. 544, 33 S.E. 326; Webb v. Demopolis, 95 Ala. 116, 21 L.R.A. 62; Elliott on Roads and Streets, p. 884.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

Appellant brought this action to restrain the respondent, its officers and agents, from interfering with her property. In July, 1890, one Dankowski was the owner of a five-acre tract of land lying south of the city of Salt Lake in Salt Lake county. After surveying and dividing said tract into lots, said Dankowski made a plat thereof, and, after having the same certified to by the county surveyor and approved by the probate judge, duly acknowledged and filed the same for record in the office of the county recorder of Salt Lake County. The land aforesaid was surveyed, platted, and a plat thereof filed, under the provisions of a certain act approved March 13, 1890. The act (Laws 1890, p. 76, c. 50), in substance, provides: Section 1: That any owner of any land may "lay out and plat such land into lots, streets, alleys and public places." By section two it is provided that an accurate map or plat of the lots shall be made showing the boundaries of all parcels of land so platted, and stating what portions thereof are intended for avenues, streets, lanes, alleys, commons, or other uses. Section 3 requires such plat to be acknowledged by the owner of the land and certified to by the surveyor making the plat, and that it be filed and recorded in the office of the county recorder of the county wherein the land is situate. Section four is as follows: "Such maps and plats when made, acknowledged, filed and recorded with the county recorder shall be a dedication of all such avenues, streets, lanes, alleys, commons or other public places or blocks, and sufficient to vest the fee of such parcels of land as are therein expressed, named or intended for public uses for the inhabitants of such town and for the public for the uses therein named, or intended." The last section of the act provides a penalty for selling any lots within any town or addition before the provisions heretofore stated have been complied with. In another act it is provided that, before filing, the plat must be approved by the authorities of the city or town in which the land is located, and, in the absence of any such authorities, by the probate judge of the county wherein the land is situate. The strip of land platted as aforesaid was 762 feet in length by 287 feet in width. Through the center lengthwise of this strip a street was platted fifty feet wide called "Wabash Avenue," and a tier of lots 25 feet by 118 feet was platted on either side of this avenue. The strip of land as platted lay between State and Second East streets, the west end abutting on State and the east end on Second East street. In this way Wabash Avenue opened on both of those streets. On the plat the following dedication appears by Dankowski, entitled "Owner's Dedication:" "Know all men by these presents; that I, Fred V. Dankowski, single, owner of the above described tract of land, having caused the same to be subdivided into lots and streets, and to be hereafter known as Dankowski Park, do hereby dedicate to the perpetual use of the public all parcels of land so described in surveyor's certificate and shown on above diagram as streets." This was duly acknowledged, and the certificate of the surveyor in due form is also indorsed on the plat.

The undisputed evidence is to the effect that the land at the time it was platted into lots was, and at the time of the trial continued to be, outside the limits of Salt Lake City and outside of any incorporated town, and was situate in Salt Lake County; that both State and Second East streets at the point in question are continuations of those streets after they pass beyond the limits of Salt Lake City; that at the time the land was platted, and ever since 1870 or 1871, a partly brick and partly adobe house was standing on the west end of the strip near State Street, nearly all of which house stands in the avenue designated as Wabash Avenue on the plat that a fence was erected more than 30 years prior to the trial along the east margin of State Street in front of the house; that this fence was kept up, with the usual breaks and repairs occurring in fences of this character, during all of the time; that there were no openings therein, except gates in front of the house, one for a driveway to the premises and another for persons to pass through; that the entire strip of ground as platted has continued in practically the same condition it was when it was platted, namely, a cultivated field on which crops of some kind were produced about each year; that nothing had been done on the platted ground in the way of improvements, and the way named Wabash Avenue was farmed in connection with the other portions of the ground and in the same manner, so that there were no indications on the ground itself of any street, road, or highway; that appellant had lived in the house standing partly on Wabash Avenue for a period of fifteen years before this action was commenced, and that others had lived in it prior to that time; that in 1901 she became the owner of five lots on one side of Wabash Avenue adjoining State Street, and thereafter, in 1904, of the other five lots lying opposite to the first five and on the other side of the avenue; that, after she became the owner of the property, she made some improvements about the house, planted shrubbery, and improved the lawn in front of and around the house, some of the shrubbery and lawn being on Wabash Avenue. Under substantially these facts and conditions, the county road supervisor on the 15th day of June, 1907, served a notice on appellant, which required her within ten days to remove all of her improvements from Wabash Avenue, and, upon her refusal to comply therewith, the road supervisor went upon the premises included within the avenue, and attempted to destroy and remove appellant's improvements, or some of them, and break down the fence in front of her house which barred the entrance to Wabash Avenue, with a view of opening said avenue as a county highway. Appellant immediately brought this action to restrain the respondent from interfering with her property. A temporary restraining order was duly issued pending a hearing on the merits. At the hearing the facts substantially as...