Westlake v. City of Youngstown

• Decision Date: 06 March 1900
• Parties: WESTLAKE v. CITY OF YOUNGSTOWN.
• Court: Ohio Supreme Court

56 N.E. 873

62 Ohio St. 249

WESTLAKE v. CITY OF YOUNGSTOWN.

Supreme Court of Ohio.

March 6, 1900

Error to circuit court, Mahoning county.

Action by Mrs. Westlake against the city of Youngstown. Judgment for defendant was affirmed by the circuit court, and plaintiff brings error. Reversed.

On the 14th day of December, 1894, Mrs. Westlake commenced an action in the court of common pleas against the city of Youngstown her first cause of action being for the recovery of possession of certain real estate described in her petition and the second being for the recovery of the rents and profits thereof from January 1, 1884. The defendant answering, admitted that it is a municipal corporation, and that it had been in the possession of the premises described for more than 21 years prior to the beginning of the action and for a first defense it denies all the other allegations of the petition. For a second defense it alleged that more than 21 years before the suit was begun the plaintiff had dedicated the premises in question to the public use as a part of the streets and public grounds of the municipality, and that it had accepted said dedication by using the grounds for the purposes aforesaid. It further alleged ‘that it has been in the open, notorious, exclusive, continuous, and adverse possession, use, and occupancy of said premises for more than 21 years prior to the commencement of this action.’ By reply the plaintiff denied the alleged dedication. On the trial it was shown without contradiction that the plaintiff was married in 1850, and continued to be a married woman until December 10, 1883, when her husband, Covington Westlake, died, and that in 1850 she began to reside upon the premises of which those in controversy were a part, title to said premises having before that time become vested in her by gift from her father. There was no evidence to show that Mrs. Westlake had ever, by the making and acknowledgment of any plat, or by the execution of a deed or other instrument, made a grant or statutory dedication of the premises to the public use claimed by the city. In support of its allegation of a dedication by her, it relied upon evidence showing that about the year 1871, when the city took possession of the ground in controversy, the plaintiff's husband, acting with representatives of the city, moved a fence upon the premises, fixing street lines as they now are; and evidence tending to show that plaintiff, with knowledge of what had been done, acquiesced therein. The court thereupon instructed the jury, with respect to the subject of dedication, as follows: ‘To constitute a dedication on the part of the plaintiff, it is essential that the plaintiff not only knowingly permitted the use of this property by the defendant for public purposes, but that such permission was accompanied on her part with an intention that the public-the city of Youngstown-should use and occupy it for public purposes. If this intention is absent, no dedication would take place, and you will not be justified in so finding. If this intention exists, and you so find, and the same was accompanied by the fact that the property was, in pursuance of such permission of the plaintiff, taken possession of by the defendant, and devoted to that use, it would constitute and be in law a dedication of her property to the use designed by the plaintiff, and would prevent a recovery in this action by the plaintiff. This intention must be determined by you from all the facts, circumstances, and evidence before you.’ With respect to the limitation upon the plaintiff's action the court instructed the jury as follows: ‘If upon this question of dedication you find in favor of the defendant, you need proceed no further, but should return your verdict for the defendant. If, however, you find that such dedication was not made, then you will proceed further to inquire and ascertain whether or not the city had been in the possession of this portion of lot No. 84 for a period of 21 years prior to the commencement of this action, which it is admitted was commenced on December 14, 1894, as claimed by it. The defendant says it had been in the open, notorious, exclusive, continuous, and adverse possession of the same during this time. This is a question of fact for your determination. If it had thus been in possession, then it is entitled to your verdict. If it had not thus been in possession, then the plaintiff is entitled to your verdict.’ Instructions to the contrary were requested by the plaintiff's counsel, and refused by the court. There was a verdict for the defendant. The plaintiff's motion for a new trial was overruled, and there was a judgment on the verdict. This judgment was affirmed by the circuit court.

Minshall J., dissenting.

Syllabus by the Court

1. Prior to the act of March 19, 1887, ‘to define the rights and liabilities of husband and wife’ (84 Ohio Laws, p. 132), it was not competent for a married woman to dedicate to public use any lands which were a part of her general estate, except in the mode prescribed by statute.

2. Lands of which a married woman became seised prior to the passage of the act of April 3, 1861, ‘concerning the rights and liabilities of married women’ (58 Ohio Laws p. 54), became in law subject to the possession of the husband, and until his death a right of action did not accrue to her to recover possession thereof from one who, during her coverture, had taken it without right.

Norris & Wirt and Murray & Koonce, for plaintiff in error.

W. T. Gibson, City Sol., and Arrel, McVey & Robinson, for defendant in error.

SHAUCK, C. J. (after stating the facts).

The questions presented are not affected by the act of March 19 1887, to define the rights and liabilities of husband and wife (84 Ohio Laws, p. 132), nor by the act of April 3, 1861, ‘concerning the rights and liabilities of married women’ (58 Ohio Laws, p. 54). The act of an earlier date did provide that an estate of the character of this vested in a married woman should ‘be and remain her separate property, and under her sole control,’ but it did not assume to change the authority of the wife over, nor the rights of the husband in,...