Moose v. . Carson

Avery, J. (after stating the facts.): It is a well settled principle that where a corporation, acting through its properly constituted authorities, or an individual, sells or conveys a town or city lot, bounded by streets or alleys, marked out on a plat, and the grantee enters upon it and expends *434 money in improving it, he is entitled to a right of way over such street or alley as appurtenant to the land, and any subsequent conveyance by his grantor, or those claiming under him, of the portions of such streets or alleys by which the grantee’s lot is bounded will be held void. Pratt v. Law, 4 Myer’s Fed. Dig., Contracts, 1046; Chapain v. Brown, 10 At., 1 Rep., 639; Sarky v. Municipality, 61 Am. Dec., 221; Port. Hudson v. Chadwick, 52 Mich., 320; Harrison v. Augusta Factory, 73 Ga., 447. The grantor thus dedicates the land, covered by a street, to the use of the public, and will be precluded, by such appropriation, from reasserting any right to the actual possession of the land, at least so long as it remains in the public use. Kennedy v. Jones, 11 Ala., 63; Proctor v. Lewiston, 25 Ill., 153; Adams v. Saratoga, 11 Barb. (N. Y.), 414, Penny Pot Landing v. Philadelphia, 16 Penn., St. 79 Re. Pearl Street, 11 Pa. St., 565. When, by laying off streets, third parties have been induced to buy lots adjacent to them and build on the lots, by an individual grantor, the dedication to the public use has been held irrevocable, although the streets may not have been formally accepted by the authorities of a town in which they lie. Grogan v. Town of Hayward, 4 Fed. Rep., 161. No one can acquire, as a general rule, by adverse occupation, as against the public, the right to a street or square dedicated to the public use. Hoadley v. City of San Francisco, 50 Cal., 265; People v. Pope, 53 Cal., 437. We may deduce from the rules of law already stated the further principle that the owners of a lot having a property or easement appurtenant in the adjacent streets, with reference to the advantages of which they expended their money for the land and the improvements put upon it, cannot be deprived of their rights by a sale for the benefit of the town that was, in effect, though not nominally, one of the grantors *435 through whom they claim title; nor has the Legislature the power to deprive them of such appurtenant rights by authorizing such grantor, whether a person or a corporation, to again enter upon and sell such streets to others. The General Assembly cannot, without a violation of the Constitution, divest, or provide for .divesting, by law, the right of a person to his property, for the purpose of vesting such right in another person or corporation merely for private use at all, and it has no power, under the organic law, to provide for taking private property for public purposes without just compensation, to be ascertained in a mode pointed out by the law. The appurtenant right of the owner of a lot in the street that formed its boundaries at the time when he, or those under whom he claims, bought it originally, with reference to such outlets, is protected against the reassertion of the grantor’s claim to it just as fully as is his title to the lot conveyed, even though the State may undertake, by law, to sanction the re-entry on the streets by one claiming under his title. Neither the Mayor of the town of Taylorsville, nor the County Commissioners of Alexander County, by virtue of the authority derived from section 1, ch. 86, Private Laws of 1887, to hold lands conveyed to the town, nor under the more explicit power to sell streets, that, in terms, is given by ch. 8, Private Laws of T889, are empowered to make a valid conveyance to any part of a street, with reference to which, as a boundary, the defendants, or those under whom they claim, bought lots in the year 1848 and improved them in 1853. Pratt v. Law, supra; Adams v. C. B. & N. Co., N. R. W. Rep., vol. 39, p. 629; Brooks v. Riding. 46 Ind., 15. The said Mayor or Commissioners cannot diminish the width of such streets from sixty-six feet, as laid off when the lots were originally sold, to sixteen, by conveying fifty feet of East Back street, extending from North Main to North Back street, and leaving an alley of only sixteen feet as a pass-way for the defendants along their front. Their *436 ancestor took with his title all the appurtenant advantages of a street sixty-six feet wide, and the tendency of converting it into an alley would; or might, be to impair the value of their property for the benefit of the town and without compensation to' them. Adams v. C. B. & N. R. Co., supra; 2 Dillon on Con., § 675, p. 674, note 1. The defendants do not own the fee in the street on their front, but hold only an appurtenant easement therein, and the municipal corporation that sold the lots occupy the same relation to them as would an individual grantor who had originally sold to them, or to those under whom they claim, and he could, neither with nor without authority purporting to be derived from the Legislature, have reasserted his right to the streets laid out by him before selling. New Orleans v. United States, 10 Peters, 717; Grogan v. Town of Hayward, supra. The plaintiffs have shown no such title as would warrant the Court in granting a writ of possession. If the fee were vested in the town, which is not conceded, there would still be wanting in the plaintiffs, its grantees, the right to prevent possession and occupancy of a street dedicated to the prrblic. City of Cincinnati v. The Lessee of White, 6 Peters, 431. It is not necessary to decide whether the Mayor of the town of Taylorsville, by joining the Chairman of the Board of County Commissioners, could, b3r virtue of a private sale, make a valid conveyance of any land belonging to the town, when the statute (The Code, §3824) gave the power to the “ Mayor and Commissioners of any incorporated town to sell at public outcry, after thirty days’ notice.” If the original conveyance did not operate to pass the title to the street, when executed, the Legislature could not, pending this suit, impart to it such vitality as to relate back to the commencement of the action and establish plaintiffs’ right to recover. The municipality derives its powers from the express grant of the Legislature, and exercises and enjoys them, subject *437 to the legislative .right of revocation; but, in controlling the property of the corporation, the General Assembly is restricted by the fundamental principle that private property cannot be taken for public use without just compensation, nor can a town be invested with authority to violate its implied contract (either directly or through its grantee, who is in privity with it), to provide a street sixtv-six feet wide for the advantage of a lot conveyed ‘by one who held in trust for the benefit of the town. Affirmed.