Town of Manitou v. International Trust Co.

Mr. Justice Steele delivered the opinion of the court. Numerous errors are assigned, but the plaintiff, relies chiefly upon the assignment which alleges that the court erred in not finding the issues joined for the plaintiff, and in not entering judgment for the plaintiff. The plat of 1874 does not purport to convey this property as a park. It is claimed, however, that the property in controversy appears on the plat like an oblong green leaf in the very center of the town, and is completely segregated from other tracts of ground by highways; that no number or designation of any kind appears on the tract of ground; that these facts show an intention to dedicate as well as a dedication, and authorities are cited which hold that when places appear upon the plat of a city or town without designation, such places are to be regarded as for the use of the public. We cannot agree with counsel that the plat itself is evidence of an intention to dedicate. True, the shape of the lot is somewhat as counsel allege, but there are other portions of the town shown to be of irregular shape. Upon the map of 1874 this portion is colored green; so are very many other portions of the plat. The lots are of various shapes and dimensions, the blocks, are not of uniform dimension or shape, and from the. plat itself, there being no express designation of this place as a park, -it cannot be determined that it was intended as a park. — 476 — It is said that the place in controversy does not bear a number. The person who prepared the complaint and the amendments filed intended to describe the alleged park as being a portion of lot 36, block A. It is admitted that the property in controversy, from 1874 to 1883 was returned for taxation ás lot 36, block A. The mere fact that a number does not appear below the private road is not of itself sufficient to warrant us in finding that the place in controversy is without designation or number. Moreover, the witness who prepared the original plat testified that lot 36 of block A was intended to include that portion south of the private road, as well as that portion north of it. And in view of the subsequent conduct of the company in referring to the property as lot 36,' and selling a portion of it as lot 36, we are of the opinion that the portion lying below the private road was intended by the company to be a part of lot 36. We are strengthened somewhat in this opinion by the statement appearing upon the plat that the paths and roads in lot 36 are private and subject to be closed. There are no paths and roads in lot 36 unless lot 36 includes that portion south of the private road. If the plat then does not show an intention to dedicate or a dedication, resort must be had to the acts and declarations and admissions on the part of the officers of the company from which an intention to dedicate may be implied. An intention to dedicate may be implied; and it is said that the expenditure of public, money by the town authorities for the improv.einent and protection of' the springs, used by the public with the acquiescense of the owners of the property, and the sale of lots by á plat on which this property was designated as a park, are sufficient to- show an intention to dedicate, a dedication, and an acceptance thereof. It was the duty of the trial judge to determine whether or not The Colorado Springs Company intended to, or did — 477 — in fact, dedicate the property in controversy as a public park, and whether, assuming a dedication to have been made, there was an . acceptance thereof by the public authorities. These questions were all determined by the trial judge, and we cannot say, after carefully considering the testimony, that the finding is not supported by the evidence. This plat of 1874 was filed for record prior to the incorporation of the Town of Manitou. But it is said that the public accepted the dedication of the park before the incorporation and that the town authorities have had possession of the park since the incorporation. Upon this issue the court decided that the public had not had the use of the park at all times since 1874, and that there had been no acceptance thereof on the part of the public. The right of the public authorities to public property conveyed by dedication depends altogether upon whether there has been an acceptance, express or implied, of the dedication. "Where the proprietor of lands sells lots with reference to a plat on which a public place is designated, he is estopped to deny the existence of such public place, because of his representation that there is and will be such a place de-, voted to public use; but the "right to have such place devoted to public use is a right to be exercised by the grantee only, and the city authorities cannot base their right to a public place upon the single act of the proprietor of land selling lots by a plat upon which a public place has been designated. There must be an acceptance of the dedication by the public authorities, and until such acceptance the act of the proprietor in selling lots amounts to a mere offer to dedicate,- and may be withdrawn. It is not claimed that the plat with reference to which lots were sold, and upon which the."park was designated, was ever filed.for record, nor is such plat produced; nor was there.any testimony showing,, or tending to show, that the an — 478 — thorities of the Town of Manitou ever expended money upon, or took possession of, any part of the ground in controversy by virtue of such implied dedication. We are therefore unable to determine either that the court misconceived the testimony, misapplied the law applicable thereto, or that his finding was contrary to the weight of the evidence in holding that there was no dedication of the property in controversy as a public park, implied from the sale of lots by reference to a plat upon which a park was designated. Upon the plat of 1883 paths are shown across the property in controversy, and within the lines of these paths several of the springs in controversy appear. On the plat of 1874 the paths in lot 36 are reserved as private paths; on the plat of 1883 the paths through lot 37, the property in controversy, are not designated as private paths. If there were no other evidence than these plats before us, we should be bound to hold that The Colorado Springs Company had dedicated the paths and springs to the public by the plat of 1883; but it appears that prior to the recording of this plat, all of the property in controversy— lot 37, the springs thereon, and the buildings — were leased to The Manitou Minera] Water Company, and the contract entered into mentioned in the statement of facts. It also appears that subsequently The Colorado Springs Company sold and conveyed to The Manitou Mineral Water Company by warranty deed the lot and the springs. It further appears that prior to the recording of the plat of 1883 some of the springs were closed, buildings erected upon "the paths, possession of the entire property taken by The Manitou Mineral Water Company, and that since that time The Manitou Mineral Water Company has paid the taxes on the property; and there is no testimony showing that the Town of Manitou, since that time, — 479 — lias expended any money in the improvement of these springs. At the time of the recording of this plat The Colorado Springs Company could not dedicate this property to the public without the consent of The Manitou Mineral Water Company; and we must hold that as far as the springs and the paths shown upon the plat of 1883 are concerned the company not only did not intend to dedicate, but had no authority to dedicate the property to the public. We do not think the fact that The Mineral Water Company took the property by reference tó a new. plat of the Town of Manitou, assuming the new plat to be the one which was filed in 1883, is important. At that time the lease and contract was executed, the public had no right to the paths and springs shown upon the plat of 1883, and when the company put The Manitou Mineral Water Company into possession of this property it could not subsequently dedicate a portion of it to the public. And it could not have been the intention of either of the parties to this lease to permit the public to have an easement in the springs or paths, and we can find nothing in the testimony which would warrant us in holding that the finding of the court in reference to this alleged dedication is contrary to the law or the Weight of the evidence. It appears that for a great number of years these springs have been open to the public with but slight restrictions, but that fact alone is not sufficient to warrant a court in finding that there has been a dedication of the property to the public, or that there has been an acceptance of it by the public or by the public authorities. The- action of the town board, as shown by its record, is conclusive, it seems to us, that the town board did not regard the park or the springs as public property. Refusing to convey a portion of a street in exchange for a portion of this park, upon the ground that the offer did not definitely state what — 480 — portion of .the.park was to be conveyed, is not consistent with a claim o.f ownership to the park which was to be conveyed. The town trustees themselves could not have believed that there 'was a dedication of the park or an acceptance by the public, for at a meeting of the council in 1880, after hearing the report of their town .attorney that the title to the park was vested in The Colorado Springs Company, and the recommendation that steps be taken to condemn, the town council appointed a committee to confer with The Colorado Springs Company in relation to giving the town title to a portion of the park now'claimed. And we regard the action of the town authorities in calling a special meeting of the town council for the purpose of taking steps looking toward the improvement of the ditch running through the park of The Manitou Mineral Water Company as at least significant. And think that the records of the town reciting that it was moved and seconded that a committee be appointed to confer with the manager of The Manitou Mineral Water Company in regard to closing springs and asking the company to delay for a while, and that when it was explained by the mayor that it was the intention of the company to close the springs only during the night time, after the closing of the pavilion, the motion was unanimously lost, should not be ignored. In fact, from the records of this town, covering a period of more than fifteen years, nowhere does it appear that the town has claimed the right to the property in controversy, but, on the contrary, has constantly been dealing with The Colorado Springs Company and The Mineral Water Company as though these companies were the proprietors of the park, and the Town of Manitou had no authority or control over it. On. the other hand, the conduct of The Colorado . Springs Company appears to have been, entirely con — 481 — sistent with its claims that the property was never dedicated to the public. At no time was the control of the property surrendered by The Colorado Springs Company to the town or the public, and the town authorities have never been in the possession thereof: The expenditures made by the town in the improvement of the springs were made at the suggestion of the officers of the company, and the town authorities consented to contribute money to keep them in repair, because the public was permitted to use the springs, and not because they were the property of the town. The Colorado Springs Company was incorporated for the very purpose of utilizing the water of these springs. By its first plat the paths and roads in the vicinity of the springs were reserved as private,* by its second plat the park was reserved as private. It paid the taxes on the property each year during the term of its ownership. It spent large sums of money in improving the springs and in beautifying the park. Under such circumstances user by the public cannot defeat the title. If lots have been sold by the officers of the company upon the representation that the park and the springs were public property, or with reference to a plat on which the place was designated as public property, the purchasers of such lots, not the town authorities, in the absence of an acceptance, can complain. Upon every issue raised by the pleadings and by the evidence, the court found in favor of the defendants, and we cannot say the finding is not supported by the evidence. The judgment must be affirmed. Affirmed. Chief Justice Campbell not participating.