Thorpe v. Clanton

• Decision Date: 30 March 1906
• Docket Number: Civil 920
• Citation: 85 P. 1061,10 Ariz. 94
• Parties: JAMES R. THORPE, Defendant and Appellant, v. T. N. CLANTON et al., Plaintiffs and Appellees
• Court: Arizona Supreme Court

85 P. 1061

10 Ariz. 94

JAMES R. THORPE, Defendant and Appellant, v. T. N. CLANTON et al., Plaintiffs and Appellees

Civil No. 920

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Reversed.

The facts are stated in the opinion.

C. F Ainsworth, for Appellant.

There being no statutory dedication, and no acceptance for and in behalf of the public, and there being no actual user of the streets and alleys so laid out running through defendant's land, the only dedication that can be asserted is that which can be inferred from the fact of reference to such map in the conveyances. 24 Am. & Eng. Ency of Law, 4th and 5th eds.; Maywood Co. v. Village of Maywood, 118 Ill. 61, 6 N.E. 866; Zearing v Raber, 74 Ill. 409; Earle v. City of Chicago, 136 Ill. 277, 26 N.E. 370; City of Denver v. Clements, 3 Colo. 472. The plaintiffs are not entitled to keep open and enforce the keeping open of all the streets shown on said map, but only those abutting on their property and which are necessary for their ingress and egress to and from their property. Badeau v. Mead, 14 Barb. (N.Y.) 328; Livingston v. Mayor etc. of New York, 8 Wend. 98, 22 Am. Dec. 622; Wyman v. Mayor etc. of New York, 11 Wend. 486; Underwood v. Stuyvesant, 19 Johns. 181, 10 Am. Dec. 215; State v. Taylor, 107 Tenn. 455, 64 S.W. 766; Mahler v. Brumder, 92 Wis. 477, 66 N.W. 502, 31 L.R.A. 695; Seeger v. Mueller, 133 Ill. 86, 24 N.E. 513, 515; State v. Hamilton, 109 Tenn. 276, 70 S.W. 619. The doctrine upon which the above cases were decided is that an implied covenant or an implied grant is not sufficient to give the owner of lots purchased with reference to a map or plat a right in streets and highways not in esse at the time the deed is made, and rights in such streets or road cannot be claimed by virtue of an implied grant, except it be by way of necessity as such ways are known in the common law. Borden v. Manchester, 4 Mason, 112, Fed. Cas. No. 1,656; 2 Hilliard's Ab. 63; Grant v. Chase, 17 Mass. 447; 9 Am. Dec. 161; Woolrych on Ways, p. 16.

There being no express grant of right of way of necessity in any of the streets mentioned in the map or plat to plaintiffs, the only rights they have extend to the streets and alleys abutting on their own property. There is no injury shown, and even if the maintenance of the fences is a public nuisance, in order to entitle plaintiffs to any right to abate the same, they must show some special damage to them, different from that resulting therefrom to the public in general, and that must be shown in a proper proceeding for that purpose. This suit is one in equity, and the equities are all in favor of the defendant. The rule seems to be well established that equity will not enforce the opening of streets inclosed by the defendant, where the damages to the defendant in so doing will be greater and in excess of the benefit to be derived by the plaintiffs therefrom. Seeger v. Mueller, 133 Ill. 86, 24 N.E. 513; Chapin v. Brown, 15 R.I. 579, 10 A. 639; Bell v. Todd, 51 Mich. 21, 16 N.W. 304.

Street & Alexander, for Appellees.

A purchaser of a town lot acquires a right in all the streets shown on the map in reference to which he buys, and it is not only those who buy land or lots abutting on a street or road laid out on a map or plat that have the right to insist upon the opening of a street or road; but where streets and roads are marked on a plat and lots are sold with reference to the map or plat, all who buy with reference to the general plan or scheme disclosed by the map or plat acquire a right in all public highways designated thereon and may enforce dedication, as the purchasers of lots acquire as appurtenant to their lots every easement which the plan represents; it being just to presume that the purchasers paid for the lots the added value of the streets, and the donor ought not therefore be permitted to take it from them by revoking part of his dedication. And this rule applies to the grantees of the dedicator as well as the dedicator himself. Elliott on Roads and Streets, sec. 120; In re Opening of Pearl St., 111 Pa. St. 565, 5 A. 432; Thaxter v. Turner, 17 R.I. 799, 24 A. 829; Meier v. Portland C. Ry. Co., 16 Or. 500, 19 P. 610, 1 L.R.A. 856; Oswald v. Grenet, 22 Tex. 94; Bartlett v. Bangor, 67 Me. 460; 2 Dillon on Municipal Corporations, p. 503 (note); Zearing v. Raber, 74 Ill. 411, 412; Maywood Co. v. Village of Maywood, 118 Ill. 71, 6 N.E. 866; Town of Lake View v. LeBahn, 120 Ill. 93, 9 N.E. 269; Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462; Hall v. Breyfogle, 162 Ind. 494, 70 N.E. 883; Village of Riverside v. McLean, 210 Ill. 308, 102 Am. St. Rep. 164, 71 N.E. 408, 66 L.R.A. 288.

Where one owning land lays off a town or village thereon, and makes a plat showing streets, etc., and then sells lots with reference to such a plat, he thereby makes an oral irrevocable dedication of the space as represented on the map as streets primarily for the use of the purchasers of lots and to the use of the public. San Leandro v. LeBreton, 72 Cal. 170, 13 P. 405; Schneider v. Jacob, 86 Ky. 101, 5 S.W. 350; Cincinnati v. White, 6 Pet. (U.S.) 438, 8 L.Ed. 457; Meier v. Portland Cable Ry. Co., 16 Or. 500, 1 L.R.A. 856 (notes), 19 P. 610; Oswald v. Grenet, 22 Tex. 94; Zearing v. Raber, 74 Ill. 409. No formal acceptance by any one is necessary to make a complete dedication of the streets drawn on such plat. San Leandro v. LeBreton, 72 Cal. 175, 13 P. 405; Mayor of Jersey City v. Morris Canal etc. Co., 12 N.J. Eq. 547; Cincinnati v. White, 6 Pet. (U.S.) 431, 8 L.Ed. 452; New Orleans v. United States, 10 Pet. (U.S.) 712, 9 L.Ed. 593; City of Llano v. Llano Co., 5 Tex. Civ. App. 129, 23 S.W. 1010; Village of Riverside v. McLean, 210 Ill. 308, 102 Am. St. Rep. 164, 71 N.E. 408, 66 L.R.A. 288. Nor is it necessary that the streets dedicated by plat and sale of lots need be immediately opened, for the dedicator leaves the streets to be opened by the proper local authorities at such time as the public interest may require, and of this the local authorities are the judges. Elliott on Roads and Streets, sec. 118; Meier v. Portland Cable Co., 16 Or. 500, 19 P. 610, 1 L.R.A. 856; Griffin v. City of Olathe, 44 Kan. 342, 24 P. 470; Town of Lake View v. LeBahn, 120 Ill. 92, 9 N.E. 269. And no mere non-user of a street of any length of time will operate as an abandonment of it and all persons in the possession of it will be presumed to hold subject to the paramount right of the public. Elliott on Roads and Streets, sec. 874; Moffit v. Brainard, 92 Iowa 122, 60 N.W. 226, 26 L.R.A. 821; Curren v. City of Louisville, 83 Ky. 628; Parker v. City of St. Paul, 47 Minn. 317, 50 N.W. 247; McAlpine v. Chicago etc. Ry. Co., 68 Kan. 207, 75 P. 73, 64 L.R.A. 85.

When the act complained of has been done against the consent and objection of the injured parties and the act is a continuing one, the party obstructing may be compelled by mandatory injunction to remove the obstruction though the suit was brought after the act was done. Elliott on Roads and Streets, sec. 666; Coffin v. Porland, 11 Sawy. (U.S.) 611, 27 F. 788; Broome v. New York & N.J. Tel. Co., 42 N.J. Eq. 141, 7 A. 851; DeWitt v. Van Schoyk, 110 N.Y. 7, 6 Am. St. Rep. 342, 17 N.E. 425; Butler v. Mayor etc. of Thomasville, 74 Ga. 570.

OPINION

SLOAN, J.

-- T N. Clanton and five other persons, owners of lots in a townsite known as Sidney, situated in Maricopa County, brought suit in the district court of said county against James R. Thorpe, the owner of certain lots in said townsite, to obtain a permanent injunction restraining Thorpe from fencing in his said lots so as to close up certain streets and alleys shown on the map of said townsite, which streets and alleys are alleged by them in their complaint to have been dedicated to public use. Thorpe, in his answer, admitted that he had fenced in and closed said streets and alleys, but pleaded that said streets and alleys had never been dedicated to public use; that the board of supervisors of Maricopa County, by resolution entered upon the minutes of said board, had duly vacated and annulled an attempted dedication to public use of that portion of said townsite which includes the streets and alleys so fenced by him; that after said action of said board he purchased the lots owned by him including the land abutting on and running through and around them designated on said maps as said streets and alleys; that after his said purchase he had cleared, fenced, and cultivated as one tract said lots, including said designated streets and alleys, as a farm. From the evidence adduced at the trial the court found that the grantors of Thorpe, then the owners and in possession of the southwest quarter of section 5, township 1, range 3 west, Maricopa County, laid the same out into a townsite, and subdivided the same into blocks and lots, and mapped and platted the same into blocks and lots, streets and alleys, numbering said blocks and lots, and naming the streets, and staked the said lots and blocks, streets, and alleys, so as to mark the same upon the ground, and gave to said townsite the name of Sidney; that on the third day of September, 1888, said grantors of Thorpe filed said map and plat in the recorder's office of Maricopa County; that thereafter Thorpe and his grantors offered said lots and blocks for sale, and that the plaintiffs purchased certain lots in said townsite, and settled upon and improved the same, and built houses for themselves thereon; that said purchases were made with reference to said map and plat, and with reference to said streets and alleys in said townsite so mapped, platted, staked, and marked upon the ground; that...