Stuttgart v. John

• Citation: 109 S.W. 541,85 Ark. 520
• Parties: STUTTGART v. JOHN
• Decision Date: 30 March 1908
• Court: Supreme Court of Arkansas

109 S.W. 541

85 Ark. 520

STUTTGART v. JOHN

Supreme Court of Arkansas

March 30, 1908

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor reversed.

Decree reversed.

Edwin Pettit and C. E. Pettit, for appellant.

1. The burden of proof was on the appellee. 58 Ark. 151; 77 Ark 177.

2. All rights of any citizen, or of town, city or public inure to the benefit of appellants, and the intervener, Downs, is a proper party to the suit. 13 Cyc. 457, 458; Id. 453; 80 Ark. 489; 77 Ark. 177; 6 N.E. 669; 92 S.W. 21; 45 N.E 238; 45 S.W. 128.

3. Dedication of the street was sufficiently made: (a) By recorded plat with instrument of dedication attached. (b) By conveyance of lots with reference to the plat. Cases supra; 13 Cyc. 455, 463 b.; 2 Dillon's Mun. Corp. art. 640; Enc of Ev. "Dedication;" 9 Am. & Eng. Enc. of L. 2 Ed. 65; 1 L. R. A. 856; 9 L. R. A. 551, notes; 5 S.W. 350; 9 N.E. 269; 66 L. R. A. 293. (c.) By admission by Price as to streets and alleys, and promise to open. 90 S.W. 1003. (d) By non-assessment and non-payment of taxes on streets and alleys for sixteen years. 62 Ark. 417. (e) By laying off lands as addition and sub-dividing it into lots and blocks. 42 Ark. 68.

4. Acceptance of dedication was not necessary: (a) Sale of lots by the plat makes the dedication complete and irrevocable without further acceptance. (b) Joint dedication by 36 grantors for mutual benefit upon valuable consideration is complete without acceptance. (c) An ordinance accepting dedication was not necessary, because the statute requiring it does not apply to towns; but if such acceptance was necessary, its absence would only affect city's liabilities, and not the public's or appellee's rights. Moreover, there is no proof that there was no ordinance of acceptance, and this burden was on appellee. 77 Ark. 221; 26 N.E. 372; 93 S.W. 473; 3 L. R. A. 660; 10 Id. 279; 45 N.E. 246; Kirby's Digest, §§ 5531, 5421, 6990, 5476; 47 Ark. 435; 54 Ark. 533; 90 S.W. 1003; 92 S.W. 20; Id. 21; 87 Va. 484; 58 Ark. 151. Acceptance of dedication will be presumed or implied, because of benefits; because of non-assessment and non-payment of taxes; because of user; because of improvements and repairs made by town and city; because of recognition of streets by municipal corporation; and because of recording the plat with instrument of dedication. 68 Ark. 63; Enc. of Ev. "Dedication" 131, 132, 133, 134; 9 Am. & Eng. Enc. of L. 2 Ed. 43-45; 13 Cyc. 476. An acceptance of a part is an acceptance of the whole. 19 S.W. 735; 40 Conn. 411; 1 Gray, 203; 12 N.Y.Eq. 547; 3 Col. 472; 18 B. Mon. 232.

5. The fact that the dedicator remained in possession after dedication is presumed not to be adverse to the right to use the streets, even after ten years. 58 Ark. 150. Price's statement to the city authorities that he was not holding adverse possession, and his promise that the city could open up the street at any time, precludes appellee from denying the city's control. 90 S.W. 937; 77 Ark. 182; 1 Cyc. 1039, 1043 (8); Id. 1153; 56 Ark. 467; 9 N.E. 269; 43 L. R. A. 433.

John L. Ingram, for appellee.

1. Appellant's claim is stale and barred by reason of laches. 17 Wall. 336; 1 Wheat. 432; 1 How. 161; 96 U.S. 611; 20 Wall. 14; 2 Black 545; 145 U.S. 368; 17 Wall. 78; 91 U.S. 587; 95 U.S. 157; 116 U.S. 93; 135 U.S. 304; 19 S.E. 514; 3 Ballard, Real Prop. 847; 10 Pet. 449; 178 U.S. 207; 18 Am. & Eng. Enc. of L. 2 Ed. 98, 102, 103, 105, 106.

2. If there was a dedication, appellant's rights to the streets are barred from the statute of limitations. 80 Ark. 181; 41 Ark. 45; 58 Ark. 42; Id. 151; 18 Am. & Eng. Enc. of L. 2 Ed. 101; 79 Ark. 10; 11 Ad. & El. 1008. The alleged admission of Price was objected to and ought to have been excluded, because the witness did not hear all of the alleged conversation. Price was dead at the time the testimony was rendered, plaintiff was not present at the time of the conversation, and the conversation, if true, would not bind her. 11 Ark. 249; 24 Ark. 499; McKelvey on Ev. 236; 6 La.Ann. 146; 10 Id. 279; 9 N.E. 710.

3. There was no dedication. The burden of proof is on the party claiming the dedication. 4 Enc. of Ev. 116 and notes; 50 Cal. 242; 24 Ia. 283; 13 Cyc. 475. The intent to dedicate is essential. 122 N.Y. 114; 63 Ark. 5; 9 Am. & Eng. Enc. of L. 2 Ed. 36-8. Yet the intent is not of itself sufficient. If the plat introduced is admissible, which appellee denies, it would only prove or tend to prove an intent which was never acted upon. Cases supra. Reference to streets for the purpose of description is not sufficient, neither is the making of a plat. 9 Am. & Eng. Enc. of L. 2 Ed. 56 and notes; Id. 57, 59; 4 Enc. of Ev. 119 and 121, notes. The alleged plat and the writing thereto attached is not sufficient to show the intent to dedicate,--it was not admissible in evidence because it was never delivered, was not entitled to record, and was not acknowledged or proved. It was not shown that same was signed by plaintiff or her grantors, and it is void on its face. 33 Ark. 600; 35 Ark. 62; 37 Ark. 91; 35 Ark. 365; 42 Ark. 141; 63 Ark. 5; 77 Ark. 570. Acceptance of the dedication is necessary. 9 Am. & Eng. Enc. of L. 2 Ed. 43; Kirby's Digest, § 5531; 92 Wis. 477; 9 Wall. (U. S.) 1, 19 L.Ed. 590.

OPINION

MCCULLOCH, J.

This is a suit in equity instituted by appellee, Mary E. John against the city of Stuttgart and its of-ricers to restrain them from opening certain streets and alleys through her property. The chancellor granted the relief prayed for, and the defendant and certain property owners who intervened in the case appealed to this court.

On May 19, 1890, N. B. Price, appellee's grantor, and the owner of certain other property in the incorporated town of Stuttgart platted an addition known as "Union Addition to Stuttgart," embracing the property now owned by appellee, and attached to the plat an instrument of writing dedicating to public use the streets and alleys shown on the plat, including that part of the streets and alleys now sought to be opened. Several years afterwards the town of Stuttgart was raised to the grade of a city of the second class. The certificate of acknowledgment appended to said instrument is in the following form:

"State of Arkansas, County of Arkansas.

"Be it remembered that on this day came before me, a notary public within and for the county aforesaid, duly commissioned and acting (naming the dedicators). And on the same day also voluntarily appeared before me (naming the wives of the dedicators) to me well known, and in the absence of their said husbands declared that they had of their own free wills signed and sealed the relinquishment of dower and homestead in the foregoing deed, for the consideration and purposes therein contained and set forth, without compulsion or undue influence of their said husbands.

"Witness my hand, etc."

The plat and dedication deed attached were riled and recorded in the office of the recorder of the county, and from time to time thereafter lots in Union Addition were sold and conveyed by the dedicators and their grantees by description having reference to the plat, or according to the plat.

At the time of the alleged dedication the property now owned by appellee, Mrs. John, which was then owned by N. B. Price, was inclosed with a fence including the space allotted on the plat to the street which was covered by a pear orchard, and it remains in that condition to the present day. No street has ever been opened through it, nor has it been used in any way by the public, but, on the contrary, it has been continuously used by appellee and her grantor. On March 10, 1903, N. B. Price sold and conveyed the property to appellee, the deed describing the property by metes and bounds and also reciting that it consisted of certain lots (giving number, etc.), "and intervening streets and alleys in said tract of Union Addition to the town of Stuttgart."

Soon after appellee purchased the property, the city council prepared to open a street through it, and she commenced this suit very soon thereafter. She alleges in her complaint that since Price purchased the property in April, 1890, up to the date of his conveyance to her he had been in actual, open, notorious and undisputed adverse possession of the property, including the part claimed as a street, claiming to be the owner in fee simple. This is denied in the answer, and it is therein alleged that, on the contrary, N. B. Price, while he occupied the property, represented to the officers of the city that he claimed no interest in the part platted as streets and alleys, and that he occupied the same by permission of the city.

Two issues are presented: Was there a complete dedication? Is the right to claim under the dedication and open the street barred by the seven-year statute of limitations?

It is well settled by the decisions of this court that where owners of land lay out a town or an addition to a city or town upon it, platting it into blocks and lots, intersected by streets and alleys, and sell lots by reference to the plat, they thereby dedicate the streets and alleys to the public use, and that such dedication is irrevocable. Brewer v. Pine Bluff, 80 Ark. 489, 97 S.W. 1034; Davies v. Epstein, 77 Ark. 221, 92 S.W. 19; Hope v. Shiver, 77 Ark. 177, 90 S.W. 1003; Dickinson v. Arkansas Improvement Ass'n, 77 Ark. 570, 92 S.W. 21.

Where lots have been sold with reference to the plat, no formal acceptance by the city or town is necessary, as by that act the dedication becomes irrevocable, and the municipality may accept at anytime and assume control over the streets and alleys. Brewer v. Pine Bluff, supra. Moreover, the statute which provides that streets and alleys dedicated to the public shall not be deemed public...