Town of Chouteau v. Blankenship
| Decision Date | 10 October 1944 |
| Docket 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 |
Syllabus by the Court.
1. The burden of showing that a street that has been created by dedication has been abandoned rests upon the one claiming abandonment.
2. 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. 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. 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. 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 §§ 1, 7.
6. 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. 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 thirty 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 thirty 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. 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 interfere with the exercise of such discretion except possibly in rare cases.
Appeal from District Court, Mayes County; N. B. Johnson, Judge.
Suit by Mozelle Blankenship and others against the Town of Chouteau a municipal corporation, and others, to enjoin defendants from opening a certain street and molesting plaintiffs in the use of such street in connection with the use of their properties. Judgment for plaintiffs, and defendants appeal.
Reversed and remanded with directions.
Ernest R. Brown, of Pryor, for plaintiffs in error.
R. A. Wilkerson, of Pryor, for defendants in error.
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.
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."
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 thirty 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 fifteen years.
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.
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.
In Salyer v. Jackson, 105 Okl. 212, 232 P. 412; State ex rel. King v. McCurdy, 171 Okl. 445, 43 P.2d 124; Board of Com'rs of Oklahoma County v. Young, 186 Okl. 182, 97 P.2d 6, and Hillsdale Company v. Zorn, 187 Okl. 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 twenty 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 ex rel. King v. McCurdy it was intimated that abandonment of a highway might be established by proof of nonuser for as much as fifteen 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 [186 Okl. 182, 97 P.2d 10]: 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, O.S. 1931, § 10143, and that [187 Okl. 38, 100 P.2d 438].
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