Smith v. City of Navasota

Stayton, Chief Justice. Appellant brought this suit to restrain the city of Navasota from opening ground claimed by the latter to have been dedicated as a street between blocks 7 and 8 in Nolan's addition to the city. Appellee in its answer asserted a right to open for use a street between the named blocks and asserted a further right to have opened an alley between blocks 7 and 12. Appellant bases his right on two propositions; first, that the land in controvery was never dedicated by Nolan for street and alley; second, if so dedicated the right had been lost by adverse possession held by him and .those under whom he claims for more than twenty years. The cause was tried without a jury, and as conclusion of fact the court found that the possession of persons through whom appellant claims was not adverse to the city, but permissive and in subordination to the right of the city to use the land for street and alley whenever this became necessary or desirable. This conclusion of fact is sustained by the evidence, and as the possession of appellant was not continued for such period of time and under such circumstances as to bar the right of the city it becomes unnecessary further to consider this branch of the case. To entitle appellant to an injunction restraining the city from opening the street or alley it was necessary that it be shown that the contemplated acts would be violative of his right. This the threatened acts would not be if the land had been dedicated to the use claimed, or if it had not been unless it was owned by appellant. For the purposes of this case it may be conceded that appellant owns blocks 7 and 12 in Nolan's addition to the city of Navasota. The deeds through which appellant claims are not set out in full in the statement of facts, but it does appear that the land covered by the blocks named is not in the deeds otherwise described than by the number • of block, city wherein situated, and by a reference to a map or plan which [427] is identified, by the words •“ according to Mills’ map and plan of Nolan’s addition to such city.” It appears, however, from a bill of exceptions that every deed through which appellant claims declares that the map or plan referred to was on file in the county clerk’s office. In so far as appellant sought relief it was incumbent on him to show that he owned the land on which the city was threatening to open a street, and not showing that he so became by adverse possession it was necessary that he should show this by deeds. His deeds alone not being sufficient to show the boundaries of the blocks claimed by him it was necessary that he should introduce the map or plan of the Nolan addition referred to in the deeds or secondary evidence thereof in order to prove the locality of the blocks and their boundaries. Without such proof his case must necessarily have failed for want of proof, unless his naked possession was such evidence of right as would entitle him to the equitable relief sought. We are of the opinion that in cases of this character an injunction ought not to be granted on evidence of right consisting only of a naked possession. Gleason v. Village of Jefferson, 78 Ill., 399. On the trial the defendant was permitted to offer from the record of deeds what purported to be a copy of Mills’ map of Nolan’s addition to the city of Navasota, "which showed the blocks claimed by appellant, with street and alley as claimed by appellee. The introduction of this was objected to by the appellant on several grounds which went to the question of proper record of the map and to its identity with that to which reference was made in the deeds through which appellant claims, but in signing the bill of exceptions the court states that “ the evidence was admitted because every deed under and through which plaintiff claimed referred to Mills’s map or survey of the city of Navasota as filed in the clerk’s office, and it was agreed that the court might examine and see if any other map could be found of record, but no other was found, and the one offered in evidence was indexed four times for the same book and page, and hence whether it was technically correctly filed and recorded or not, if it was the map referred to and according to which the conveyances were made the plaintiff was bound by the recitals of his deeds to abide by the map.” There was no objection that the original map was not produced or its absence accounted for, and the map found on the record was placed there on December 10, 1859. The map introduced in evidence seems to have been recognized as a correct map of Nolan’s addition made by Mills, and as early as 1871 it was recognized by the city as a correct map, and was used and followed in making a survey and map of the entire city by a surveyor employed to perform that work. The court found that the map offered in evidence was the map of the [428] Riolan addition made by Mills, and that the deeds through which appellant claims referred to that identical map or plan. In view of the recitals in the deeds relied on by appellant to show title in himself, and of all the facts and agreements attending the introduction of the map, and of the further fact that the map offered had been for many years acted upon, we are-not prepared to hold that the court erred in receiving it in evidence or in holding that it was a true copy of the map or plan to which reference was made in appellant’s deeds. As evidence it was conclusive of the fact that a street existed between blocks 7 and 8 and an alley between blocks 7 and 12, as claimed by the city. The evidence of the dedication of the street and alley to public use was sufficient, as was it to show that the city had accepted the dedication. There was evidence introduced by appellee showing declarations made by persons through whom appellant claims as to the existence of the street and alley and of their knowledge and recognition of the same while they owned and possessed the blocks. These declarations, however, were made after the persons making them had ceased to own or possess, and should not have been received. The cause, however, was tried without a jury, and the record shows that the court did not consider this evidence on any issue to the prejudice of appellant. The evidence of a witness was objected to on the ground that it related to alleys and not to the existence and recognition of a street by persons through whom appellant claims, there being no relief sought in appellant’s petition against the opening of alleys by the city in Nolan’s addition. The bill of exceptions, however, shows that witness used the words streets and alleys in the same sense and as equivalents; but had not this been so the pleadings of appellee authorized and required an inquiry whether the alleys were dedicated and as to whether the possession of the ground on which they were placed was adverse to the city. Appellant certainly can not be held to be an innocent purchaser of the ground crossed by the street and alley the city seeks to open, for he bought under a deed which for description of the blocks bought by him referred to a map which showed the street and alley and that the blocks were bounded by them. If appellant made improvements wholly or in part in the street or alley, under the- findings of the court this was done not only with the means of knowledge furnished by his own deeds and map to which they referred, but Avith actual notice that he Avas placing improvements in the street. Under this state of facts such improvements were made in bad faith and furnish no ground for relief. What has been said disposes of the assignments of error, and finding no error in the judgment of which appellant complains it will be affirmed. Affirmed. Opinion January 15, 1889.