Town of Chouteau v. Blankenship

• Decision Date: 10 October 1944
• Docket Number: Case Number: 31447
• Citation: 152 P.2d 379,194 Okla. 401,1944 OK 275
• Parties: TOWN OF CHOUTEAU et al. v. BLANKENSHIP et al.
• Court: Oklahoma Supreme Court

1944 OK 275

152 P.2d 379

194 Okla. 401

TOWN OF CHOUTEAU et al. v. BLANKENSHIP et al.

Case Number: 31447

Supreme Court of Oklahoma

Decided: October 10, 1944

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Abandonment of street created by dedication--Burden of proof.

The burden of showing that a street that has been created by dedication has been abandoned rests upon the one claiming abandonment.

2. SAME--Abandonment of street in incorporated town not established by proof of nonuser.

Proof of nonuser of a street in an incorporated town created by dedication, without also proving affirmative official acts of the board of trustees clearly showing an intention to abandon the street, is insufficient to establish abandonment of the street.

3. SAME--Mere delay in opening street would not constitute abandonment.

Mere delay in opening a street created by dedication in an incorporated town when the public need has not required its use does not constitute an abandonment of the street.

4. SAME-ADVERSE POSSESSION--Municipality title to streets cannot be divested by adverse possession for prescriptive period.

In the absence of a statute to the contrary, the title to streets created by dedication is held by the municipality in trust for the public, and not in a proprietary capacity, and, since the municipality is without power to alienate the same, it cannot be divested of title thereto by adverse possession for the prescriptive period.

5. SAME--NUISANCE--Obstruction of street public nuisance not legalized by lapse of time.

The act of obstructing a duly created street is a public nuisance, and no lapse of time can legalize the same. 50 O.S. 1941 §§l, 7.

6. SAME--ESTOPPEL--Equitable estoppel as applied to right of municipality to open street.

The doctrine of equitable estoppel, if applicable to the right of a municipality to open a street for public use, will be applied only in exceptional cases and with great caution.

7. SAME--Incorporated town not estopped to open street by 30 years' nonuser and occupation by abutting property owners.

A street was created by dedication in 1902 in the incorporated town of Chouteau. It was not opened, improved or used for public purposes for 30 years prior to 1942. A barn, chicken house and outhouses were built thereon by the owners of the abutting property, and it was fenced and used for such purposes and for garden purposes for about 30 years. In 1942 the governing board of the town decided to open and use the street for public purposes, and notified the owners of the abutting property to remove said buildings. Most of the buildings were removed, and some large shade trees growing in the street were also removed. Held, the town and its officers are not by said facts equitably estopped to open, improve and use the street for public purposes.

8. SAME--Discretion of municipal officers as to opening streets.

The questions of the advisability of opening a street created by dedication, and of when it shall be opened, rest largely in the discretion of the municipal officers, and the courts will not interefere with the exercise of such discretion except possibly in rare cases.

Appeal from District Court, Mayes County; N. B. Johnson, Judge.

Injunction by Mozelle Blankenship et al. against the town of Chouteau et al. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Ernest R. Brown, of Pryor, for plaintiffs in error.

R. A. Wilkerson, of Pryor, for defendants in error.

HURST, J.

¶1 This is a suit by the owners of property in block 1 in the incorporated town of Chouteau. to enjoin the town and its officers from opening Ohio street and from molesting the plaintiffs in the use of said street in connection with the use of their properties. The trial court entered judgment in favor of the plaintiffs as prayed, and the defendants appealed.

¶2 The trial court made findings of fact, which are responsive to the issues made by the pleadings, the material portion of which is as follows:

"After having heard the evidence adduced on behalf of all parties and being fully and sufficiently advised in the premises, the court finds that the said Ohio Street involved herein was a part of the original plat of the townsite of Chouteau, as surveyed and platted and certified to by the Engineer, on the 2nd day of January, 1902; that if the said Ohio Street was ever used at all, it was never at any time opened or maintained by the Town of Chouteau; that prior to and at the time of the incorporation of the Town of Chouteau, under and by virtue of the laws of the State of Oklahoma, the area on both sides of Blocks 1 and 2 of the original town was owned by J. O. Grant; that the said Ohio Street as shown by said plat lies between the said Blocks 1 and 2; that approximately thirty years ago the Town of Chouteau opened an extension of McCracken Street, which lies adjacent to the East side of said Block 1; that for more than thirty years the said extension of McCracken Street as shown in the original townsite of Chouteau has been maintained and used by the public generally; that the improvements in the way of dwelling houses located upon said Block 1, were constructed so as to face the said McCracken street lying to the East thereof; that the outbuildings and back houses to the several residences upon the said Block 1, were constructed to the west of the said dwelling houses; that on the area designated as Ohio Street, valuable improvements have been constructed consisting of barns, chicken houses, gardens and toilets; that along some portions of the said Ohio Street trees have grown up which are now of considerable size and which affords shades to the West of said dwelling houses; that the said Ohio Street has been treated in no respect as a street for the past thirty years, but has been fenced and used for private purposes and for improvements as aforesaid; that the said Town of Chouteau has knowingly permitted the said area designated as Ohio Street to be used for the said purposes; that the Town of Chouteau has abandoned the said Ohio Street, which said abandonment has existed for more than thirty years; that the said town is now estopped from claiming or asserting the right to use the said Ohio Street for street purposes and that it should be perpetually and permanently enjoined from opening the said Ohio Street and from using it for said purposes."

¶3 The appellants argue three propositions, but under the view we take of the case our determination of the third proposition in their favor is decisive and makes it unnecessary for us to consider the other two. The third proposition is that the record does not establish a vacation of Ohio street so as to vest in the owners of the adjacent property ownership of any part of the street or the right to enjoin the opening and use of it for street purposes. They say that only nonuser is shown here, and that nonuser alone is not sufficient to establish vacation or abandonment of a street so as to divest the town of title to the street or the right to open and use it for public travel. The plaintiffs argue that abandonment of Ohio street is established by proof of its nonuser as a street for as long as 30 years, by proof that McCracken street, which lies east of block 1, has been established, improved, and used since 1913, and by the adverse use and occupancy of Ohio street by the owners of the abutting property for more than 15 years.

¶4 The only statute that has been called to our attention or that we have found dealing with the power of the officers of incorporated towns to vacate streets is 11 O. S. 1941 §1004 (8). It provides that the board of trustees shall have power "to lay out, open, grade and otherwise improve the streets, alleys, sewers, sidewalks and crossings, and to keep them in repair and to vacate same." The statutes do not prescribe the procedure to be followed by the town board of trustees in vacating streets and alleys.

¶5 The parties discuss 11 O. S. 1941 §659, but that section deals with the power and duty of the governing board of cities in vacating streets, alleys and lanes. It does not apply to incorporated towns. The parties also call our attention to cases that deal with the vacation or abandonment of highways by the board of county commissioners as authorized by 19 O. S. 1941 §339 (3) and 69 O. S. 1941 §363. For completeness we call attention to 11 O. S. 1941 §§522-529, giving the district court jurisdiction to vacate plats or part thereof, including streets, alleys and public grounds. The cases that deal with vacation or abandonment of streets and alleys in cities and of highways not in towns are not directly in point, but by analogy have a bearing on the question. Before taking up the precise question here presented, we think it well to mention those cases.

¶6 In Salyer v. Jackson, 105 Okla. 212, 232 P. 412; State ex rel. King v. McCurdy, 171 Okla. 445, 43 P. 2d 124; Board of Com'rs of Oklahoma County v. Young, 186 Okla. 182, 97 P. 2d 6; Hillsdale Co. v. Zorn, 187 Okla. 38, 100 P. 2d 436, this court dealt with the question of vacation or abandonment of highways by the board of county commissioners. In Salyer v. Jackson, above, it was held that abandonment of a highway was shown by the failure for 20 years to open and use the highway and by the fact that a canyon crossed the highway and made it unsuitable for road purposes. In State v. McCurdy it was intimated that abandonment of a highway might be established by proof of nonuser for as much as 15 years, but it was held that abandonment was not there established. In Board of Com'rs of Oklahoma County v. Young, above, it was said:

"County commissioners do not have authority to abandon highways at will. They must proceed in accordance with legislative mandate, whence they derive all their powers, duties and authority not provided by the Constitution."

¶7 In Hillsdale Co. v. Zorn, above, it was said that final abandonment of a highway is accomplished only by vacating it as provided by 69 O. S. 1941 §363,...