Von Tobel v. City of Lewistown
| Decision Date | 28 April 1910 |
| Parties | VON TOBEL v. CITY OF LEWISTOWN. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; Frank Henry, Presiding Judge.
Suit by Rudolf Von Tobel against the City of Lewistown. From a decree for plaintiff and an order denying a new trial, defendant appeals. Affirmed.
Wm. M Blackford, for appellant.
O. W Belden and Rudolf Von Tobel, for respondent.
This suit was brought to obtain an injunction restraining the city of Lewistown from opening or attempting to open a public street through certain premises claimed by the plaintiff. The plaintiff alleges that he is, and for more than 20 years last past has been continuously, the owner and in possession of certain lands situated within the corporate limits of the city of Lewistown (then follows a description by metes and bounds), that Third avenue in said city abuts on his property, and that about August 16, 1907, the city, without any right and against the will of the plaintiff, tore down his fence inclosing his property, and threatens to, and unless restrained, will, open and extend Third avenue through his property for a distance of about 300 feet. The answer admits that defendant tore down plaintiff's fence, that unless restrained it will open and extend Third avenue through his premises; but denies that in so doing it has acted or will act wrongfully. The answer then contains new matter by way of defense, to the effect that in 1882 Francis A. Janeaux and wife were the owners of the S.W. 1/4 of the N.E. 1/4 of section 15, township 15 N., range 18 E., in Meagher (now Fergus) county; that they then caused a portion of said land to be surveyed and platted as a town site, and a plat thereof to be duly filed in the office of the county clerk and recorder; that one of the avenues surveyed, staked out, and made to appear on said plat was and is the Third avenue mentioned above; that thereafter, in 1884, the said Janeaux and wife again caused the said lands to be surveyed, staked out, marked, and platted and a plat thereof to be filed in the office of the county clerk and recorder, but, by mistake, the plat and indorsements thereon made it appear that the land so surveyed and platted was the S.W. 1/4 of the N.W. 1/4 of said section 15, whereas it was intended to represent the S.W. 1/4 of the N.E. 1/4 of said section; that thereafter, on August 20, 1890, for the purpose of correcting the erroneous description, an amended map or plat was filed; that in making the surveys, marking and designating the lots, blocks, streets, avenues, and alleys, and in filing the plats, it was the intention of the owners to "devote, remise, grant, quitclaim, convey and dedicate the streets, avenues, and alleys thus staked off, laid out, marked, and designated to the public for its use and benefit forever." It is then alleged that in 1886 the plaintiff purchased from Francis A. Janeaux and wife the land now claimed by him, and received a deed therefor which described the land by metes and bounds, which description concludes: "Except the streets and alleys contained thereon." It is further alleged that within the exterior boundaries as given in the deed above there was a portion of Third avenue, a portion of Water street, and a portion of the alley which passes through block S22, and that the respective portions of said avenue, street, and alley were expressly excepted from the grant contained in the deed to plaintiff. It is then alleged that the public accepted the dedication of the streets, avenues, and alleys, and, as rapidly as the same could be, they were improved and used by the public. Most of these affirmative allegations were put in issue by reply. There is in the reply also a plea of the bar of the statute of limitations, a plea of estoppel in pais, and an attempt to plead title by adverse possession. The trial court found in favor of plaintiff on his plea of adverse possession, and further found that the evidence was not sufficient to show that any of that portion of Third avenue in question had ever been dedicated to the public as a street, highway, or otherwise. From the findings made the court concluded that the acts of the defendant city in attempting to extend Third avenue through plaintiff's property were wrongful, and that plaintiff was entitled to a permanent injunction restraining the city from further interfering with his possession of that particular portion of his property. From the decree entered in favor of plaintiff and from an order denying it a new trial, the city appeals.
Much of the argument of counsel for the respective parties is devoted to a consideration of two questions: (1) What is...
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