The Town of Marion v. Skillman
| Decision Date | 31 January 1891 |
| Docket Number | 14,698 |
| Parties | The Town of Marion et al. v. Skillman et al |
| Court | Indiana Supreme Court |
From the Grant Circuit Court.
Judgment reversed.
A. T Wright, A. E. Steele, and J. A. Kersey, for appellants.
This was a suit for injunction by appellees against appellants. The court found the facts specially and stated its conclusions of law thereon. Appellants excepted, and the only questions necessary to be considered here arise on the assignment of error by appellants that the court erred in its conclusions of law.
The facts found by the court are substantially as follows Appellees own and are in possession of a tract of land situate within the corporate limits of the town of Marion containing 42/100 acres, on which is situate a valuable hotel building. This land they and their vendors and predecessors in ownership had owned and occupied for more than twenty years when this suit was commenced and appellees had resided thereon for more than fifteen years prior thereto. No part of this land had ever been platted as an addition to said town, nor had any part of it ever been condemned, nor formally and by record dedicated as a street or part of said town. It was, however, surrounded by lands that had been thus formally platted in lots, streets and alleys. Lying north of and adjoining the land in question is what is known as "Clark Wilcott's addition" to said town, and south and adjoining the said land is what is known as "Pilcher's addition," and a certain street known as "Branson street" is laid out and used across both said additions, running north and south forty-nine and one-half feet in width, and a direct extension of said street from one of these additions to the other would pass over and across the east side of appellees' said land. Appellees' and their predecessors in the ownership of said land permitted the public and said town to use a strip of the east side of their said land as a public street and as a continuation of said Branson street from a time prior to the erection of said hotel building and for more than twenty years prior to the commencement of this suit. From the facts found it further appears that Branson street, as dedicated to the public on the plats of Clark Wilcott's addition, Pilcher's addition and the original plat of the town, in connection with the strip used by the public, with appellees' permission, across their said land, formed a continuous and straight strip extending entirely across said town of the uniform width of forty-nine and one-half feet, and that until the erection of the hotel building above referred to, there was no obstruction on appellees' land to the use by said town and the public of said Branson street in its uniform width of forty-nine and one-half feet. When the hotel building was erected is not shown save that it was since the public commenced the use of appellees' land as a part of said street and prior to March, 1887. When the hotel building was erected it was so placed that at its northeast corner it was six inches, and at its southeast corner thirty inches, east of the west line of said Branson street; or, in other words, if Branson street was extended across said land said building would extend into the street to that distance.
In March, 1887, one of the appellees, with others, petitioned the board of trustees of the town to cause the sidewalks on said Branson street, including the part thereof along and on said land, to be graded to the width of eight feet, and paved within said eight feet to the width of four feet. The board granted the petition, ordered the improvement made, and caused the engineer of the town to set stakes showing the line of the improvement and marking the outer or curb-line.
The finding is a little obscure as to the location of the curb-line, but as we construe it the curb-line was laid to correspond with the curb-line on other parts of the same side of Branson street.
The walk was then constructed in accordance with the order of the board of trustees, except that appellees, instead of improving the walk in front of their hotel building so as to conform to the boundaries indicated by the engineer, disregarded the curb-line fixed by him, and so constructed the walk that at the northeast corner of the building it extended six inches east and outside of the curb-line, and at the southeast corner it extended thirty inches outside thereof. In other respects, as to grade, width, material, etc., it conformed to the order made and the stakes set by the engineer.
The court finds this was rendered necessary by reason of the location of the hotel building as above stated, and that in order that the walk might be eight feet wide in front of the hotel building, it was necessary either to thus extend the walk outside the curb-line, or move the building back to that distance. This walk, after its completion, was accepted by the town.
In April, 1888, appellees, with others, petitioned the board of trustees of the town to cause Branson street to be graded and macadamized. The prayer of the petition was granted; and the necessary steps were taken by the board to grade and macadamize the street accordingly.
In order to carry out this work according to the plans and specifications adopted by the board, the court finds that "It will be necessary to take up and remove a portion of said sidewalk pavement so made by plaintiffs, to wit, a strip off the east side thereof six inches wide at the north end, and regularly increasing in width to thirty inches wide at the south end thereof."
The town authorities let the contract for the construction of the street improvement to appellant Philip Matler, and at the time this suit was commenced he was proceeding to construct the same, and was about to take up and remove that portion of appellees' sidewalk above described. If taken up and removed there would remain but five and one-half feet in width of sidewalk in front of the south end of said hotel, and seven and one-half feet at the north end. The object of this suit was to prevent the removal of that portion of the sidewalk, appellees' claim being that by its removal irreparable injury would be done to their said property.
The conclusions of law were in favor of appellees, and it was ordered that a temporary injunction previously granted be made perpetual.
We regret that we are compelled to pass upon the questions presented by this record without the aid of a brief from counsel for appellees.
Their contention, however, as we gather it from the record, seems to be that the town has never acquired the right to treat the strip of land in question as a part of Branson street; or, if their conduct has been such as to amount to a dedication, that the dedication is only of so much of the strip of land as lies outside the line of the hotel building, which line must be treated as the boundary, and the sidewalk and curb-line be adjusted accordingly; and that the threatened cutting away of a portion of the sidewalk, which they aver will render their property worthless, is an attempt on the part of the town to so widen Branson street at that point as to take a part of the land on which the building stands, which has never been dedicated to the public, and thereby deprive them of it without due process of law.
The statement which we have made of the facts as they were found by the court, is, we think, accurate and full as to all facts found which are necessary to a determination of the questions involved.
That property may be dedicated to a public use is a principle too well established to require any citation of authorities. As is also the principle that all that is necessary to constitute such dedication is the assent of the owner of the soil to the public use, and the actual enjoyment by the public of the use for such a length of time that public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment. State v. Hill, 10 Ind. 219; Mauck v. State, 66 Ind. 177; Summers v. State, 51 Ind. 201; City of Indianapolis v. Kingsbury, 101 Ind. 200. There must be in such cases an intent on the part of the owner to dedicate, and the intent to dedicate must clearly appear. Dillon Munic. Corp., section 627 et seq. Such intent may be inferred from circumstances.
The assent of the owner to the use need not be expressly declared, nor be manifested in any particular manner, but may be implied from the conduct of the owner of the land. Elliott Roads and Streets, 99.
An implied dedication arises by operation of law from the acts of the owner. Williams v. Wiley, 16 Ind. 362; City of Evansville v. Evans, 37 Ind. 229; City of Indianapolis v. Kingsbury, supra; Waltman v. Rund, 109 Ind. 366, 10 N.E. 117.
It is considered as in the nature of an estoppel in pais, and once made it is irrevocable. Elliott Roads and Streets, 89 et seq.; Dillon Munic. Corp., section 631, and cases cited; Haynes v. Thomas, 7 Ind. 38.
While the question of dedication from permissive occupation and use depends upon the intention of the owner, yet evidence of such occupation and use is one of the evidences of an intention to dedicate. No length of time can be fixed as necessary to enable a court or jury to find that there has been in fact a complete common law dedication. The question as to the intention of the owner of the land to dedicate it, is, in the majority of cases, one of mingled law and...
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