Waring v. City of Little Rock

• Decision Date: 16 May 1896
• Citation: 36 S.W. 24,62 Ark. 408
• Parties: WARING v. CITY OF LITTLE ROCK
• Court: Arkansas Supreme Court

36 S.W. 24

62 Ark. 408

WARING v. CITY OF LITTLE ROCK

Supreme Court of Arkansas

May 16, 1896

Appeal from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

STATEMENT BY THE COURT.

This is a controversy concerning the right of the city of Little Rock to control and keep open a street across a piece of land claimed by appellant, Waring.

The suit was brought by Waring to enjoin the city from interfering with his possession of such land. The city claimed that Eighth street extends across said land, and that it has been established across said land both by dedication and prescription. The land was at one time owned by Mrs Matilda Johnson. In the year 1868, Edwin H. Hilliard recovered a judgment against said Matilda Johnson. An execution was issued thereon, and the sheriff levied the same upon a tract of land belonging to Mrs. Johnson, containing six acres. The land in controversy lay adjoining the land levied upon, but had been previously transferred by Mrs Johnson to A. H. Sevier. Before selling the land levied upon the sheriff divided it into lots and streets, and platted the same, with other land adjoining it, as "Johnson's Addition." The land in controversy was a part of the tract owned by Sevier, and was included in the plat of said addition made and recorded by the sheriff. The plat of said addition showed Eighth or Holly street as extended across the land in controversy. This plat of Johnson's addition was filed for record on the 9th of December, 1868. There is nothing to show that the sheriff had authority to make and record this plat, but, after the same was made, the owners of land included therein described such property in all subsequent conveyances thereof as in Johnson's addition to the city of Little Rock. Waring and Fletcher, from whom Waring purchased the land, testified on the trial that the land had never been used as a street by the public; that the travel was not over it, but diagonally across the adjoining lots; that the city had done no work on the property, nor repaired it as a street. Fletcher also testified that, about a year after the street railway had been built, he served notice on the president of the company that the company had built on his property, and the president, for the company recognized his rights, and promised not to plead the statute of limitations.

On behalf of the city, J. N. Jabine testified as follows: "I have known Eighth street since 1861. It was an open street at that time, to the best of my recollection. It has been used as a street continuously since. I never heard of any dispute about it being a street until this suit was brought. East and west of the property in controversy the houses and fences are all built evenly with reference to Eighth street being a regular street. * * * * * The street railroad threw up a track in the center of Eighth street, and injured the travel very much, but the people could and did travel it on either side of the dump. Before the track was built, there was, I suppose as much travel there as on any of the out streets, with the exception of Ninth street. I sometimes rode over Eighth street in the street cars, and sometimes walked over it. I live two blocks from the property in controversy. So far as I know, this street has been used continuously since 1861."

John E. Geyer, who stated that he lived near the property in controversy, testified for the city as follows: "I have known Eighth street, as projected through or by the property in controversy, about twenty-one years. I bought the property that I live on now about that time, and Eighth street was a street then. It was a street then through the property in controversy. Prior to the time the street railway threw up their levee or dump on Eighth street, it was as good as three-fourths of the streets in the city, and it was used as a public street by wood wagons, buggies, and other wagons. There was not much travel over it. I never heard of any objection to its being used as a street until today, as I thought Mr. Waring was suing for damages for the dump being put and left there. I have heard Mr. Jabine's testimony read. The statements made by him in reference to the fences and buildings, condition, and travel of the street for the last fifteen years are true, and I adopt it as my deposition."

The testimony of W. D. Holtzman was substantially the same as that of Jabine and Geyer. He also testified that, "before the street railway was built, Eighth street over the property in controversy was worked by the city as much as other streets. The ditches were cleaned out, and property drained. It was not done often, as not much work was done on the streets."

The following facts were also proved: About the year 1882, the city, by an ordinance, permitted a street railway company to build a street railway over this property, as part of Eighth street. The cars of the company were run over it regularly for several years, until the track was changed to Ninth street. A telephone company was permitted to erect its poles along Eighth street without the consent of either Waring or his grantor. H. L. Fletcher, the grantor of Waring, in the year 1887, made application to the city council to be paid for the use of this property by the city, stating that the city had taken possession of it. Appellant, Waring, afterwards, in 1891, made a similar application to be paid for the use of the property by the city. The city paid them nothing, and in no way recognized their right to obstruct the street. The other facts sufficiently appear in the opinion. The chancellor dismissed the complaint of appellant for want of equity.

Decree affirmed and motion denied.

Marshall & Coffman, for appellant.

Appellant shows a chain of title from the U.S. government, and an appropriation for public use as a street must be shown by a clear preponderance of the testimony to have been done in some of the modes known to the law. There was no express dedication of the land. The plat filed by the sheriff was abortive as to lands lying west of those sold by him, in the suit, as to those who were not parties, and who never joined in or assented to its execution, but always asserted rights antagonistic to it. Land can only be dedicated by its owner. 42 Ark. 66; 22 P. 623; 29 Kas. 28. Nor has there been any implied dedication by conduct of the owners amounting to an estoppel. In such case the intent to yield the land to public use must be clear and unequivocal. Dill. Mun. Corp., sec. 495; 5 Am. & Eng. Enc. Law, 400; 59 Ark. 26. The use by the public in this case was permissive only. 29 A. 370; 58 Am. Dec. 610; 60 id. 407; 9 Am. & Eng. Enc. Law, 367; Ell., Roads, etc. 93, 126; 59 Ark. 35; 39 Am. Dec. 754. In 59 Ark. 26, and 47 id. 431, there were unmistakable acts of the owner and the public authorities, tending to show dedication and adverse user, and even these were not held conclusive. Here nothing was done by the city, except perhaps to drain off the water at rare intervals. Knowledge of work or travel by the owners is essential to proof of intent to dedicate. Elliott, Roads and Streets, 126; 41 N.J.Eq. 489; 58 Iowa 567. The public travel and work may be perfectly consistent with the rights of the owner. The travel was not confined to any particular route, and is not shown to have been confined to the so-called street at all. There are no circumstances to show that the use was not merely permissive. 24 Am. & Eng. Enc. Law, 10, 11 and notes; 5 id. 409. Even if this land, or any part of it, has been dedicated by estoppel or otherwise, it is still but a private way, to be insisted on only by those who have acquired rights, unless the city has, in the manner required by law, adopted it as a public street and highway. Without this she cannot protect it by any civil or criminal proceedure. 24 Am. & Eng. Enc. Law 11, 12; Dill. Mun. Corp., 505, and notes; 5 Strobh. (S. C.) 217; 58 Ark. 142; 47 Ark. 431; 31 P. 338; 3 Pick. 408; 9 Bush, 61; 8 Gratt. 632. When there is a statutory requirement, it is exclusive. 5 Am. & Eng. Enc. Law, 414; Elliott, Roads and Streets, 118. Slight and unequivocal acts are not sufficient. Id. 115, 116; 15 N.E. 854; 17 id. 43; 65 Mich. 241. The street must be accepted. Gantt's Dig., sec. 3210; Mansf. Dig., sec. 738; 58 Ark. 142; 44 id. 537. The act of 1873 does not apply, for these lands were not decided,--at least those west of Ferry street. 58 Ark. 142; 44 id. 537. The city's claim by prescription is untenable, because (1) such right can only grow out of adverse user in a well defined line of travel for the statutory period, under claim of right with knowledge of the owner or circumstances of notoriety. 44 Ark. 537; 50 id. 53; 47 id. 66; 1 Am. & Eng. Enc. Law, 264; 9 id. 366-9; 19 id. 12, 15, 23, and notes. And (2) a mere user by private individuals, who have no authority or desire to bind the city, but simply act upon their own choice, however long, can never start the statute. Cases supra; 35 Kas. 717; 55 A. 618; Angell, Highways (3 Ed.), 151. In those cases where prescription was sustained, there was work done or some distinct recognition by public authorities. 83 Am. Dec. 264; 110 Ind. 509; Elliott, Roads, etc. 137, and note; 19 A. 1051; 30 P. 64; 17 S.W. 520. And the assertion of their rights by the owner defeats the prescription. 19 Am. & Eng. Enc. Law, 22, and note; 10 L. R. A. 484, and note; 59 Ark. 35. The reference to Eighth street in Fletcher's deed would create an estoppel between the parties, but does not inure to the benefit of others, or of the city. As to them, it is no more than a reference to a brook or other natural object. 63 Mich. 165; 12 A. 664; 16 id. 631, 59 Ark. 12; 25 P. 673; 29 N.E. 274.

J. W. Blackwood, City Attorney, for appellee.

The proof shows that this property has been used as a public...