White v. Smith

• Decision Date: 09 October 1877
• Citation: 37 Mich. 291
• Court: Michigan Supreme Court
• Parties: Caroline N. White v. Canton Smith and Martin B Smith

37 Mich. 291

Caroline N. White v. Canton Smith and Martin B Smith

Supreme Court of Michigan

October 9, 1877

Argued June 20, 1877

Appeal from Kent. (Hoyt, J.)

Injunction bill against building on disputed territory. Defendant appeals. Affirmed.

Decree affirmed with costs.

Champlin & More (on briefs) for complainant and appellee. A grantor is bound by the description in his deed. Parker v Smith 17 Mass. 414; Parker v. Framingham 8 Met. 267-8; Smith v. Lock 18 Mich 56; Sinclair v. Comstock Har. Ch. 404; Litchfield v. Wilmot 2 Root 288; Haynes v. Thomas 7 Ind, 38; Mayor, etc. of Macon v. Franklin 12 Ga. 239; Hawley v Baltimore 33 Md. 270; Hannibal v. Draper 15 Mo. 634; Godfrey v. Alton 12 Ill. 29. The dedication of the "common" was accepted within a reasonable time and before it was revoked. Guthrie v. New Haven 31 Conn. 321; Clements v. West Troy 10 How. Pr. 199; Leffler v. Burlington 18 Ia. 361; Gwynn v. Homan 15 Ind. 201. Being a mere widening of streets accepted by 18 years of public use, it may be held dedicated by acts in pais. Baker v. Johnston 21 Mich. 340. The fee vested in the county in trust for the public use, and the dedication could not be revoked within the time limited for the recovery of real estate, unless the dedication is refused. Wanzer v. Blanchard 3 Mich. 11; Wayne Courty v. Miller 31 Mich. 447; Detroit v. D. & M. R. R. Co. 23 Mich. 208; M. E. Church v. Hoboken 33 N. J. Law 13; Pella v. Scholte 21 Ia. 463; Hunter v. Middleton 13 Ill. 50. Platting lands and selling with reference to the plat amounts to dedication which becomes irrevocable if accepted. Huber v. Gazley 18 Ohio 18; Doe v. Attica 7 Ind. 641; Logansport v. Dunn 8 Ind. 378; Simmons v. Cornell 1 R.I. 519; Oswald v. Grenet 22 Tex. 94; Cole v. Sprowl 35 Me. 161. Revocation after acceptance is unavailing. Chapin v. State 24 Conn. 240. The court has jurisdiction to enjoin the erection of the building as a nuisance. Georgetown v. Alexandria Canal Co. 12 Pet. 91; Rowe v. Granite Bridge Co. 21 Pick. 344; Bigelow v. Hartford Bridge Co. 14 Conn. 565; O'Brien v. Norwich R. R. Co. 17 Conn. 372; Frink v. Lawrence 20 Conn. 117; Spooner v. McConnell 1 McLean 337; Putnam v. Valentine 5 Ohio 190; Leake v. Cannon 2 Humph. 169; Williams v. Smith 22 Wis. 594; Dickey v. Me. Telegraph Co. 46 Me. 483; Com v. Rush 14 Penn. St. 186; Watertown v. Cowen 4 Paige 510; Wood on Nuisances, § 655.

T. B. Church and Norris & Uhl (on brief) for defendants and appellants, cited Sinclair v. Comstock Har. Ch. 412; People v. Beaubien 2 Doug. (Mich.) 256; People v. Jones 6 Mich. 179; Tillman v. People 12 Mich. 405; Cook v. Hillsdale 7 Mich. 115; Lee v. Lake 14 Mich. 12; Baker v. Johnston 21 Mich. 319; Detroit v. D. & M. R. R. Co. 23 Mich. 173; Field v. Manchester 32 Mich. 280.

OPINION

Marston, J.

Upon the main and undisputed facts this case may easily be disposed of.

Canton Smith as owner in fee of certain lands caused the same to be platted as an addition to the village of Grand Rapids, and the plat thereof to be recorded in August, 1849.

In the spring of 1850, he caused the lots in this addition to be offered for sale at public auction, and among the lots then sold, lot one in block six was purchased by J. W. Wisner through whom complainant claims title. In the deed to Wisner the property was described as "lot No. 1 in block six (6), said lot being one hundred and six (106) feet on Washington street, sixty-five (65) feet and six (6) inches on Louis street, sixty-six (66) feet on State street and one hundred five (105) feet on an alley running from State to Washington street, said lot lying in Smith's addition to the village of Grand Rapids, reference being had to the recorded plat thereof."

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In August, 1872, Canton Smith claiming that Louis street did not extend to the front of this lot but only to State street, sold and conveyed the land on the west side of this lot and up to the intersection of State and Washington streets, (the same being a triangular piece of land at the intersection of these streets), to Martin B. Smith, who afterwards commenced the erection of a dwelling house upon the piece so purchased. This bill was filed to obtain a perpetual injunction to restrain the erection of such house and for other purposes.

Canton Smith having in 1850 conveyed lot one to complainant's grantors and having in such conveyance described the property as being sixty-five feet six inches on Louis street, he, and all others claiming under him subsequent thereto, are estopped from now claiming that this street did not extend in front of this lot. This question was settled in this State in Smith v. Lock 18 Mich. 56. The question still remains as to that part of the property lying west of Louis street. The record of the plat was destroyed by fire and a complete copy of the record or of the plat was not introduced in evidence. Some question was made as to whether the land was properly platted and recorded. The bill alleges that in August, 1849, Canton Smith was the owner in fee of this land, that as such he platted the same into streets, lots, alleys and blocks and caused the same to be acknowledged, and on the 15th day of August, 1849, to be recorded according to the statute in such case made and provided, in the office of the register of deeds. Canton Smith in his answer admits that he was owner, and that he did cause the same to be platted as an addition to the city of Grand Rapids, and did have the said plat recorded as in said bill of complaint alleged. We consider this charge in the bill and admission in the answer a full and complete recognition of the validity of the plat and record thereof. Even if any doubt existed upon this question the act of 1850 (1 How. Stat. § 1487) ^[*] would remove it. We must treat this land therefore as having been legally platted and recorded.

An examination of the plat, were it not for the word "common," would indicate that this disputed strip was intended as a mere widening or expansion of Washington and State streets, and if this is the correct view then no difficulty could arise as it would be a part of those highways, and there is no question but that there was an acceptance of these highways by the proper authorities. It is however marked or designated upon the plat as "common," which indicates an intention on the part of the owner to delicate it to the public for any use which the proper authorities might deem proper, and which could be legitimately regarded as public. And although it is now claimed that at the time this plat was made the proprietor thereof did not fully understand the meaning of the word "common" as there used, yet we are of opinion that this can make no difference. A person is concluded by the words he deliberately adopts and uses in an instrument, whether he at the time fully understood their legal signification or not. The rights which third parties may acquire cannot be affected by the individual views or understanding of the proprietor in such a case. The only remaining question necessary to be considered relates to an acceptance of this part designated as common, by the public authorities. There is no doubt but that an acceptance must be made within a reasonable time, but what shall be considered such time must be largely governed by the surrounding circumstances in each case. And so long as the original proprietor, or those claiming through him, take no steps to withdraw the offer, we think it must be considered as continuing. In April, 1862, a resolution was passed by the common council of the city of Grand Rapids, reciting that they had investigated the title to this strip and found that it was dedicated to and belonged to the public and directing the city marshal to take and hold possession of the same, cause it to be surveyed and staked out as the property of the city and in all respects to protect the interests and rights of the city therein. Some action was taken under this resolution and some years later certain parties under the direction of the city marshal fenced in this piece and made some slight improvements thereon for the benefit of the city. No objections whatever or claim of ownership was set up by Canton Smith until one year or upwards after the fencing and improvements were thus made. We are all of opinion that the resolution of April, 1862, and the subsequent acts performed thereunder was a sufficient acceptance on the part and behalf of the city, and that the subsequent acts of Canton Smith in attempting to resume possession were unlawful and gave him no special rights in the premises.

The decree must be affirmed with costs.

The other Justices concurred.

A grantor is estopped from disputing his deed: Payne v Atterbury Har. Ch. 414; Stockton v. Williams 1 Doug. 546; May v. Tillman 1 Mich. 262 and note; Shotwell v. Harrison 22 Mich. 410; Damouth v. Klock 29 Mich. 289; Smith v. Williams 44 Mich. 240, 6 N.W. 662; Cicotte v. Anciaux 53 Mich. 227, 18 N.W. 793; Case v. Green id. 616; LaCoss v. Wadsworth 56 Mich. 421, 23 N.W. 75; so is his estate: Comstock v. Smith 26 Mich. 306; an estoppel is not to be based on an ineffectual attempt to dedicate: Lee v. Lake 14 Mich. 12; but selling lots by a dedicated plat precludes resumption of ownership. Sinclair v. Comstock Har. Ch. 404; and one who buys lots which his deed describes according to a recorded plat is estopped from disputing the dedication and acceptance of an alley which appears thereon as bounding his lots and passing between them. Marble v. Price 54 Mich. 466, 20 N.W. 531. But a plat of lands belonging to a woman was acknowledged by her husband as owner and so recorded. The wife afterwards formally acknowledged the plat, and the record was altered conformably. Held that it did not entitle purchasers to hold...