Kelly v. West Seattle Land & Improvement Co.

The opinion of the court was delivered by Stiles, J. — In a somewhat extended examination of cases and hooks, running far beyond the citations in the briefs, we have not succeeded in finding any precise authority to aid in the decision of this appeal. Respondent sued the appellant and its grantee, the Seattle [195] Transfer Company, for damages álleged to have accrued to her lots in block 5, of the appellant’s first plat of West Seattle, by reason of their acts, an outline of which we shall narrate. On the 16th day of October, 1888, the' appellant was the owner of certain real estate of which it on that day filed a plat in the office of the auditor of King county. Prior to that day it appears that its president and secretary had in their possession blue print, or other duplicates of the plat, but upon which no dedication was written. According to the finding of the jury in the case at least one of these duplicates was shown to respondent, and she was invited to buy some of the lots, although the final arrangements for putting the property on the market had not yet been completed. She was told that the plat shown her would be the plat that would be filed, and that certain grounds indicated thereon would be dedicated to the public as parks, would be beautified by the company, and would be forever keptopenandunbuiltupon. She made uphermindthatlots 15 and 16, in block 5, wereher choice, because only the westerly half of the block appeared to be divided into lots. The easterly half, although it was evidently enclosed within the blocklines, was undivided and was marked “Park Reserve,’’ in plain letters. The lots were at the edge of a high bluff overlooking the bay and the city of Seattle, while the “ Park Reserve ” was on the slope toward the bay. She was assured that this would be a park, and the advantages of the situation were set forth to her in engaging terms by the officers of the corporation. The plat was filed for record shortly after noon on October 16, in the identical form in which it had been exhibited to respondent, but it then had attached to and made a part of it a very peculiar and, to the respondent, disappointing instrument of dedication; for, by this instrument, nothing but certain streets and alleys [196] shown on the plat were dedicated, and the following was added: “It is the intention hereby to reserve to said West Seattle Land & Improvement Company, its accessors and assigns, all rights and privileges not hereby expressly granted, and nothing shall be taken by implication against the said company, its successors or assigns, by reason of this dedication, unless the same is hereby expressly granted.” Respondent admits that under this plat and deed, as filed, there was no statutory dedication of the “Park Reserve” to the public, but that it was retained to the corporation for all purposes. But she claims that through the representations made to her in words and by the exhibition of the unsigned plat, she, as a purchaser of the above mentioned lots without actual knowledge of the limitations attached to the recorded plat, was entitled, under the doctrine of estoppel which is applied in such cases, to have the “Park Reserve” kept and maintained a public park as an appurtenance to her property. As before stated, the plat with its deed of dedication was filed shortly after noon of October 16th. Respondent’s purchase was made after the plat was filed, and she exhibits a deed dated October 16th, but acknowledged and recorded October 19th. Its delivery could not, therefore, have been made until the latter date. The description in the deed was of “lots 15 and 16, block 5 (and others) in first plat of West Seattle, by the West Seattle Land & Improvement Company, as recorded in the auditor’s office of King county, Washington Territory.” Respondent at the time she took her deed had not seen the plat as filed for record with the deed of dedication attached. • In April, 1889, the appellant had contracted to sell to the Seattle Transfer Company a portion of the “ Park Reserve” comprising about seventy-five feet in width across its southerly end, for the purpose of erecting thereon a [197] barn; and as a part of the consideration it had graded the surface to a level so that immediately in the rear of respondent’s lots there was an excavation from ten to fifteen feet in depth, and all of the trees and shrubbery were removed. April 2d this seventy-five feet of land was conveyed to the Seattle Transfer Company, which forthwith erected its barn, covering nearly the whole space. The action was brought upon the theory of a dedication by estoppel of the “Park Reserve,” and of a continuing nuisance caused by the permanent diversion of part of it to other uses, the excavation and the erection of the barn. The gravaman of the action was the destruction of respondent’s easement as an appurtenanee to her lots, and damages were awarded ‘to her in a large sum. The Seattle Transfer Company was made a defendant under allegations of notice to it of all the facts upon which respondent based her claim of estoppel; but at the trial there was a total failure to prove the notice, and the court granted a non-suit as to that defendant, from which respondent does not appeal. We do not see how this judgment can be sustained. The deed which respondent accepted described her property according to the plat which was of record, whereby the plat and all its contents became a part of the conveyance, as though it had been incorporated into it. The sale to her was not made with reference to the plat which she had looked at some days before, but by one which had since become a public record, of which she was bound to take notice. We do not say that if at the time of a sale of lands according to a plat on file the seller should represent to the purchaser who did not see the plat that a certain dedication existed on it, no damage would accrue if the representations were false, or that there is no authority for the holding that in such a case a dedication would be inferred by estoppel, especially where there had been an [198] adverse use by the public, although the recorded plat might in both cases expressly negative the idea of dedication. Village of White Bear v. Stewart, 40 Minn. 284 (41 N. W. Rep. 1045); Baker v. Vanderburg, 99 Mo. 378 (12 S. W. Rep. 462). But where the declarations shown were made before the plat was executed or filed, and merely consisted of statements as to what the seller intended to do, and what would be the case when the plat should be filed, we can see no reason why the usual rules as to false representations should not apply; and why it was not entirely competent for the appellant to change its form of certificate from the one promised to the one adopted and recorded without rendering itself liable to be holden to a dedication to the public by estoppel, of all that its officers had promised to respondent would be dedicated before it sold any of its lots to her. And when we add to the law of such cases the fact that the deed made the recorded plat a part of itself, it seems clear that respondent, in accepting it, waived the benefit of the statements made to her and took just what the deed expressed and nothing more. This position is warranted by the principal case relied upon by respondent: Fisher v. Beard, 32 Iowa, 346. We pass over certain testimony which was introduced over the objection of the appellant, tending to show a dedication subsequent to the filing of the plat by user of the public, as there was no such issue in the case. The case above discussed was made at the time appellant’s motion for non-suit was overruled; the judgment is therefore reversed, and the cause remanded with instructions to the superior court to sustain the non-suit and dismiss the action. Andees, O. J., Dunbab and Scott, JJ., concur. Hoyt, J., being disqualified, did not sit.