United States v. Case Library

• Decision Date: 07 December 1899
• Docket Number: 5,943.
• Citation: 98 F. 512
• Parties: UNITED STATES v. CASE LIBRARY et al. In re CASE'S HEIRS.
• Court: U.S. District Court — Northern District of Ohio

98 F. 512

UNITED STATES v. CASE LIBRARY et al.

In re CASE'S HEIRS.

No. 5,943.

United States Circuit Court, N.D. Ohio, Eastern Division.

December 7, 1899

S. D Dodge, for the United States

Blandin Rice & Ginn, McKinney & Dunnigan, and Lewis J. Woods, for Case's heirs.

TAFT Circuit Judge.

The questions about to be decided arise in proceedings by the United States to condemn a public street of the city of Cleveland for post-office purposes. The land was conveyed to the city by Leonard Case 'as and for a street.' The heirs of Case, made parties to the proceedings, claim compensation for the fee in the street, on the ground-- First, that the fee in the land never passed from their ancestor, but only an easement; and, second that, even if a fee passed, it reverts, on termination of the use for which it was conveyed.

My conclusions I must state most briefly, and only by way of a memorandum.

1. By the deed of Leonard Case and his wife to the city of Cleveland, dated May 18, 1859, of the land used as the street called 'Case Place,' a fee was vested in the city. Apt words to convey a fee are used. The recital in the granting clause, 'that the parcel of land is conveyed to said city as and for a public street of the said city,' cannot cut the deed down to a mere grant of an easement. It is the parcel of land which is conveyed, not a mere right in another's land. The cases of Verplanck v. Mayor etc., 2 Edw.Ch. 220, and Kittle v. Pfeiffer, 22 Cal. 485, do not support the contention of counsel for the claimants in this behalf. In the former, the instrument relied on did not make party to it the city, but was a mere covenant between two adjoining owners that they would convey for purposes of dedication; in the latter the deed to the city was not accepted by the city, and its operation was rather by way of estoppel in favor of abutting owners, who held under conveyances describing the property conveyed as abutting on the street attempted to be conveyed to the city by the deed in question.

Nor do I think that the effect of the deed, as a conveyance of land, as cut down by the terms of the ordinance accepting the grant. Thereby the city 'accepted and confirmed, as a public street,' 'the dedication of the land specified in the deed from Leonard Case to the city of Cleveland, being a strip of land thirty-five feet wide,' etc. This ordinance was made necessary by the law of Ohio passed March 18, 1859 (56 Ohio Laws, p. 57), which imposed upon the city council the care of all public streets, and required it to keep the same open and in repair, and free from nuisance, and thus made the city responsible in damages to one injured by its failure to comply with this requirement, but which limited such responsibility by the further provision that no street thereafter dedicated to public use by its owner should be deemed a public street under the care of the council, 'unless the same shall be accepted and confirmed by an ordinance specially passed for such purpose. ' The object of this provision is palpable. It was to protect the city from liability for the nonrepair of alleged streets which had been dedicated to the public, and which it did not deem to be of real public benefit or worth the expense of repair. But for the statute, every dedication and conveyance for street purposes would take effect without express acceptance, because of the ordinary presumption that a conveyance of land or an interest in land confers a benefit and is accepted by the grantee. The function to be performed by the council, under this statute, is merely the expression of consent by the city to accept land for street purposes, with the responsibilities thus entailed, and it was not intended that the council should be prevented from accepting a deed of the fee for street purposes. The word 'dedication,' used in the statute, must apply to statutory dedications, and yet, by the words of the statute, a dedication by plat conveys a fee to the city. It can hardly be held, therefore, that the council, in using the word 'dedication,' found in the statute, intended to cut down the interest conveyed by the words of the deed from a fee to a mere right of user or easement. The ordinance must be construed to be merely an acceptance of the deed as it was and of the title thus conveyed.

2. Under the...