Keppler v. City of Richmond

Sims, J., after making the foregoing statement, delivered the following opinion of the court. The argument in this case has covered many subjects: and the law bearing upon the essential requisites in such a case as this, both of a dedication on the part of the land owner and ian acceptance on the part of the public, jvhether actual, or implied in fact or in law, or dispensed with by law, has been ably discussed by learned counsel on both sides of the cause and numerous authorities have been cited. But after all we find but little difference between counsel as to the legal principles involved. They differ for the most part as to the facts and as to the application thereto of well settled legal principles. — 602 — Wé may say also, at the outset, that, since in our view of the case a preponderance of the evidence does not establish that there was ever a dedication of the land in question for a public use, we shall not enter in this opinion upon the question of whether there was a valid acceptance of the land for public use on the part of the city or of the public. We may assume, so far as the questions we have to decide in this cause are concerned, that its charter provisions and its ordinances, and the city map of 1872, relied on by the city, are sufficient to have constituted a valid acceptance, if there had been a dedication of the land in question for use as a public alleyway. Confining our consideration, therefore, to the question of dedication, with the exception of what is hereinafter said concerning the right by prescription which is also relied on by the city, and concerning certain questions of evidence, we shall consider the positions taken by the parties and pass upon the questions raised by the assignments of error in their order as stated below. [1] 1. Does the charter provision of the city of Richmond, presently to be quoted, have the effect of concluding, in favor of the city, the question of dedication? Section 24 of the charter of the city of Richmond (Acts 1869-70, p. 120, 128), so far as material to the question under consideration, provides as follows: “24. Whenever any * * alley * * shall have been opened to and used by the public for a period of five years, the same shall thereby become a * * alley * * for all purposes, and the city shall have the same authority and jurisdiction over and right and interest therein, as they have by law over the * * alleys laid- out by it. * ■ The following authorities are cited to sustain the position of the city that such charter provision is conclusive that there was a dedication in the case before us, namely: 3 McQuillin Mun. Corp., sec. 1303; Bolger v. Foss, 65 Cal. — 603 — 250, 251, 3 Pac. 871; So. Pac. Co. v. City of Pomona, 144 Cal. 339, 77 Pac. 929; Ellsworth v. City of Grand Rapids, 27 Mich. 250; Campau v. City of Detroit, 104 Mich. 560, 562, 62 N. W. 718; Speir v. Town of New Utrecht, 121 N. Y. 421, 24 N. E. 692. It is undoubtedly true that city charter provisions such as that above quoted are valid as statutory law, and where the provisions apply they are conclusive evidence of dedication. In all of the cases cited and above named, however, the public user was unequivocally a public and an adverse public user for the statutory period before the private use in suit was sought. These authorities go no farther than the holding that such a public user, by virtue of statute giving mere public user such effect, dispenses with all need of evidence of an actual dedication, and that the defense that there was no dedication in fact is not available to the landowner in such a case. Moreover, all of the said authorities involve charters or statutes which contain merely the provision that a user by the public for the period prescribed therein shall, in substance, confer a right of way upon the public. In the charter provision we have under consideration something more is added, namely, that the alley must be “opened to” as well as “used by the public,” for the period named therein, before the provision becomes operative. This added provision must be given some meaning, and it differentiates the case before us from those covered by the authorities cited on the point. Such provision is similar to that of the charter of the city of Brooklyn, which is construed in Strong v. Brooklyn, 68 N. Y. 1. That provision is as follows : “That all streets and avenues in said city which have been or may be thrown out to public use, and have been or may be used as such for five years continuously, should be deemed public stress and avenues, and that the city of — 604 — ficers should have jurisdiction and power in respect thereto, the same as if such streets and avenues have been or shall have been opened by proceedings had for that purpose.” That decision holds, in substance, that such a charter provision requires the same evidence of dedication, to put it in operation, as the law requires to raise an implication of a common law dedication from mere user of a way. We are of opinion that the charter provision of the city of Richmond under consideration should receive the same construction. The question under consideration must, therefore, be answered in the negative. [2] 2. Has the city by public user acquired the right of a public easement in the land in controversy by prescription? Under all of the authorities the user must be under a claim of right and must also be unequivocally adverse in order that the public may acquire the right in question by prescription. 22 Am. & Eng. Ency. L. 1190, 1192; Jones on Easements, sec. 267; 3 McQuillin Mun. Corp., sec. 1299; 1 Elliott on Roads and Streets, sec. 194; Skeen v. Lynch, 1 Rob. (40 Va.) 186, 194; Horris’ Case, 20 Gratt. (61 Va.) 833; City of Richmond v. A. Y. Stokes, 31 Gratt. (72 Va.) 713; City of Richmond v. Gallego Mills, 102 Va. 165, 45 S. E. 877. As we shall see below, such adverse user did not exist in the case before us, and, hence, this question must be answered in the negative. 3. Are the following named deeds in the chains of title of lots abutting in the rear on said alley, other than the Keppler lot (with the owners of which appellants are not in privity), and the provisions in such deeds quoted below, admissible in evidence against appellants ? And, if so, what is the effect of such evidence? (a) The first mention which we find in the record of — 605 — an alley, the northern side line of which is so located that if extended to Seventh street it would include the land in controversy, is found in a deed of date of November 30, 1849, to Abraham Hirsh from Wm. H. McFarland and John E. Blair, trustees under a deed of trust from one John B. Richardson, securing the payment of certain indebtedness of the latter, which deed conveyed the lot marked 627 on the plat accompanying the above statement. At this time McFarland owned individually a lot fronting on Grace street which abutted in the rear on the alley shown on said plat, across from and opposite the rear of such lot 627. That is to say, before the Hirsh deed such alleyway ran past the rest of lot 627 and extended out to Seventh street, as shown on the above plat. The evidence which is set forth in the above statement shows that this alley, at the time of the Hirsh deed, was certainly an alley in common, if not a public alley. It is necessary for us to decide in this cause whether such alley was the former or the latter character of alley. We shall hereinafter refer to it as the old alley or alley in common. So considering it, the right of use of it was at the least an easement which was appurtenant to lot 627, as well as to the other lots on both sides of such alley and abutting thereon, including the Keppler lot. This alley was, as aforesaid, referred to in a number of the conveyances establishing it as being a “10 foot alley,” but as explained in the above statement, it was in fact approximately twelve feet wide as located on the ground in accordance with such conveyances. The deed of Hirsh aforesaid, however, contained the following language in its description of the metes and bounds of lot 627, viz; “bounded on the south by an alley, which separates the premises hereby conveyed from the lot of said McFarland, but the southern line of the premises hereby conveyed shall be extended ten (10) feet further south to the centre of said — 606 — alley, provided the said alley east of the premises hereby conveyed shall be closed, or the use thereof to the premises be withheld; and upon the happening of these events, or either of them, the right or title to the said ten (10) feet of ground extended as aforesaid, shall be vested, in the said Hirsh, his heirs and assigns forever.” (Italics supplied.) At the time of the Hirsh deed the' Keppler lot belonged to said John B. Richardson but was not conveyed by said deed of trust under which the deed to Hirsh was made. At such time the situation also was that much more than eleven feet of the rear end of the Keppler lot was vacant and doubtless uninclosed. There was then an open space across the rear end of the Keppler lot much wider than eleven feet. [3] We are of opinion that the Hirsh deed was not admissible in evidence, on the ground that its recitals are binding on appellants, under the rule applicable to recitals or declarations in deeds to which the parties to a cause are parties or privies, since there is no privity of estate between the appellants and the owners of the property conveyed by the Hirsh deed. But— [4-6] We are of opinion that the Hirsh deed (being over thirty years old), was admissible in evidence against appellants, although they are not in privity therewith, under the exception which ancient deeds afford to the rule as to inadmissibility of hearsay evidence. It is admissible in evidence for what it may be worth because of its declaration that the rear line of the lot it conveyed was on an alley. This is a declaration in the nature of a general reputation, or a traditional declaration, in regard to the fact that an alley existed at an ancient time in that location, either a public alley, or one in which a number of persons had an interest, being indicated Such declarations in ancient deeds are admissible in evidence although they go beyond a description of monuments marking the mere boundary lines of the land conveyed by such deeds. Jones on Evi — 607 — dence, sec. 301; 1 Greenleaf on Evidence (16th ed.), sec. 128, 139; Morris v. Callanan, 105 Mass. 132; 2 Elliott on Evidence, 1278. In the case of such declarations in such deeds, the same principle upon which the authorities hold that hearsay evidence is admissible to prove boundary lines (Carruthers v. Eldridge’s Ex’r, 12 Gratt. (53 Va.) 670; Nowlin v. Burwell, 75 Va. 551; Harriman v. Brown, 8 Leigh (35 Va.) 697, and many other Virginia cases on the subject) is pushed, in its application, a step farther, so as to admit traditional evidence, not only that a certain tree or other monument marked a certain boundary line, but that a public body of land, such as a manor, or parish, or highway, or the like, or even that a private body of land in which a number of persons have a common interest, marked such boundary line, where the declaration comes from one having such common interest. 1 Greenleaf on Evidence, sec. 138-a. A public alley, or an alley in common, as marking the boundaries of abutting property owners, may be a subject upon which such traditional declarations may be admissible in evidence as tendiiig to prove their existence in such cases, under such extension of such principle. See to the same effect 1 Elliott on Roads and Streets, sec. 198, where it is said: “* • * * a deed between -third parties referring to a way has been * * held competent upon the question of the location and existence of the way as a matter of public and general interest upon which reputation is admissible.” Citing authorities. [7] But, as stated by 1 Greenleaf on Evidence, sec 189, such evidence is “not entitled to much weight It may, therefore, be rebutted by very slight evidence of a more definite character. And we find within the clause of the Hirsh deed itself above quoted the rebuttal of any inference which might otherwise be drawn therefrom that the ten feet in width to the north of the old alley aforesaid, to which it refers, — 608 — was at that time a public alley, or an alley in common, or a part of such an alley. It is apparent from the reading of such clause that such deed contains merely a conditional dedication or appropriation of a strip of land at the rear of the lot thereby conveyed to be added to the previously existing old alley in that location so as to make such alley twenty feet wide, instead of ten feet as theretofore delimited by the conveyances of abutting property owners along its course as aforesaid; and the condition was that “the said alley east” of the lot 627 (which clearly meant a strip from the southern end of the Keppler lot adjacent and in addition to the old alley existing there, as aforesaid, so as to make such alley at that location and all the way out to Seventh street twenty feet wide), should not “be closed or the use thereof to the * * (lot 627) * * be withheld.” And the deed provided, in substance, that “upon the happening of these events or either of them,” the proffered dedication or appropriation of the extra ten feet in width of land to widen the old alley at the rear of the lot 627 should stand withdrawn. This recognized the right of the owner of the Keppler lot, as existing at that time,, to close or withhold the strip of land now in controversy in this cause from the use of it as an alley. So that instead of being evidence against the appellants on the subject of dedication, it is a circumstance in their favor. Subsequently, the deed of 1851, quoted from in the statement preceding this opinion, conveyed the Keppler lot by metes and bounds, which, by. well established rules of construction of deeds, extended the lot back to the old alley; and such deed furnishes convincing evidence that up to the date thereof, in 1851, there had been no dedication by the owners of the Keppler lot of the strip of land in controversy for use as a public alley, or any appropriation of it by them as :an alley in common. [8] (b) The city relies upon three other subsequent — 609 — deeds in the chain of title of said lot 627, or of portions thereof (with which deeds the appellants are not in privity), two dated in 1896 and the other in 1909, the first of which deeds described the real estate conveyed as abutting on an alley “20 feet wide,” and the other two of such deeds describing such alley as a “public alley, 20 feet wide.” These deeds, however, being less than thirty years old, were inadmissible in evidence against appellants under the authorities aforesaid. (c) The city also relies upon two deeds in the chain of title of the Young Men’s Christian Association to that portion of its real estate shown on the plat preceding this opinion which is on the corner of Grace and Seventh streets, and extends back to said long existing old alley on the opposite side of it from the strip of land in controversy in this cause; one of such deeds being of date December 2, 1861, and the other of date January 16, 1868, which describes the lot conveyed as running back a certain distance to “a wide paved alley.” [9] We are of opinion that these deeds were admissible in evidence as containing the declaration with respect to the alley being “a wide * * alley,” on the same ground as that above noted on the subject of the admissibility in evidence of the Hirsh deed. But manifestly the probative value of such evidence is even less than that of the Hirsh deed, since it gives no definite width. The actual width of twelve feet of the old alley aforesaid might satisfy such description, since such width was in excess of the record width thereof aforesaid, of which the grantors in such deeds were doubtless aware as their deeds themselves refer to the chain of title to the lot being conveyed, in which chain of title appears of record deeds which refer to such alley as a “10 foot alley.” It may well be that the language “a wide * 151 alley,” was used in the deeds in question because the grantors therein knew from their chain of title that, by the en» — 610 — croachment above mentioned on the front, or fronts, of the lots which abutted on the old alley, the actual location of the latter had made it wider than ten feet, but how wide they did not accurately know. And the evidence, to say the least of it, leaves it equally probable that it was for that reason that such deeds did not refer to any exact width as being the width of the alley, as the older deeds, in their chain of title did, but referred to it as “a wide * * alley,” rather than that such reference was intended as a declaration that such alley was a public alley. And ¡as to the reference of the two deeds in question to an “alley,” the presence there of the old alley aforesaid satisfied that description, so that any inference that such description referred to a public alley is thereby rebutted. We come now to consider the principal question involved • in this cause, and that is— [10, 11] 4. Has the user by the public of the strip, of land in controversy been sufficient to raise the implication or presumption of a dedication- of it to the public ? Since, as we have above seen, neither its charter provision above mentioned nor prescription has conferred upon the city of Richmond or the public the easement in question, the city must rely upon a common law dedication. There are two classes of such dedications, express and implied. The intent to dedicate is essential to both classes in order to complete a dedication. The city in this cause must rely upon an implied dedication, since there is no evidence tending to show that there was ever any express dedication. An implied dedication is not founded upon a grant, nor does it necessarily pre-suppose one. It is founded on the doctrine of estoppel in pais. 1 Elliott on Roads and Streets, sec. 132-7; Benn v. Hatcher, 81 Va. 25, 29, 59 Am. Rep. 645; City of Norfolk v. Nottingham, 96 Va. 34, 30 S. E. 444; 2 Greenleaf on Evidence (2d ed.), sec. 662; and many others of the authorities elsewhere cited. — 611 — [12] It is very true that the intent to dedicate which may be implied need not have actually existed in the mind of the land owner. One is presumed to intend the usual and natural consequences of his acts. Hence, where public or private rights have been acquired upon the faith of conduct of the landowner under such circumstances as to ¡make the doctrine of estoppel applicable, the law will imply the intent to dedicate even where there is an entire absence thereof in the mind of the landowner, and even against a contrary intent. 1 Elliott on Roads and Streets, sec. 142, 146; City of Richmond v. A. Y. Stokes & Co., 31 Gratt. (72 Va.) 713; Gillespie v. Duling, 41 Ind. App. 217, 83 N. E. 728; Morgan v. Railroad Co., 96 U. S. 716, 723, 24 L. Ed 743; Tise v. Whitaker-Harvey Co., 146 N. C. 374, 59 S. E. 1012; 4 McQuillan Mun. Corp., sec. 1561; Champ, v. Nicholas County, 72 W. Va. 475, 78 S. E. 361; City of Los Angeles v. McCollum, 156 Cal. 148, 103 Pac. 914, 23 L. R. A. (N. S.) 378. In the cause before us we cannot inquire or decide whether the doctrine of estoppel aforesaid is-applicable in favor of any private owners of lots abutting on the alley in question, since no such parties are before us. With respect to the city, the facts- in evidence disclose that the city has acquired no property nor made any expenditure on the faith of the strip of land in controversy being a public alley or a part of such an alley. The.sole ground on which it must rely in this cause for the application of said doctrine of estoppel is the long continued user by the public, as it claims, of said strip of land as a public alley or as a part thereof. [13] Now it is well settled that where public user is relied on to establish dedication, the user must be of such a character “as would indicate to prudent men that the public claim is, as of right, to the way as a street or road, and that the owner is fully aware of the extent, and character of the — 612 — use and makes no objection * * (Italics supplied.) 1 Elliott on Streets and Roads, sec. 179. To the same effect see 4 McQuillin Mun. Corp., sec. 1563, 1564; Harris’ Case, 20 Gratt. (61 Va.) 833; Talbott v. Richmond & Danville. R. Co., 31 Gratt: (72 Va.) 685. The actual knowledge aforesaid on the part of the owner need not be proved; but the user must be of such an adverse character that it may be reasonably expected to convey such knowledge to owners of the property affected if they are alive to their own interests. As said in Harris’ Case, supra, 61 Va. (20 Gratt.) at p. 840: “Where no public or private interests have been acquired upon the faith of the supposed dedication, the mere user, by the public, of the supposed street or alley, although long continued, should be regarded as a mere license, revocable at the pleasure of the owner; unless, indeed, there be evidence of an express dedication; or unless, in connection with such long-continued user, the way has been, by the proper town authority, recognized as a street, so as to give notice that a claim to it as an easement was asserted.” (Italics supplied.) [14, 15] In the cause before us the preponderance of the evidence is to the effect that the city authorities never graded, paved, repaired the paving on, laid or repaired any sewer on, or did any other overt acts whatsoever upon the strip of land in question “so as to give notice that a claim to it as an easement was asserted.” The sole act of the city authorities which could be regarded as having any tendency to give notice of such a claim was the adoption by the city council in 1872 of a map or plan of the city on file in the city engineer’s office, which was on a small scale, and which upon close inspection showed an alley at the location of the ten-foot alley above referred to, which was in fact approximately a twelve-foot alley as actually located on the ground as aforesaid. A careful scaling of this map discloses that such alley, as shown thereon, is approximately seventeen — 613 — feet wide. But so far as the'evidence goes, the appellant and those under whom they derive title had no notice of such disclosure of such map until the controversy involved in this cause arose, and if they had had prior notice of the contents of such map they might readily have taken the alley aforesaid shown thereon to have been the long existing old alley aforesaid, which did not embrace the land in controversy. Hence, such map is not of that character of evidence which is necessary in such a case to give the requisite notice aforesaid of the claim of easement in order to raise a presumption of -dedication. As said by Judge E. C. Burks, speaking for this court, in Talbott v. Richmond & Danville R. Co., supra, 72 Va. (31 Gratt.) at p. 688: “Intent is the vital principal of dedication. In a case where acts and declarations are relied on to show such intent, to be effectual, they must be unmistakable in their purpose and decisive in their character; and in every case it must be unequivocally and satisfactorily proved. (Citing authorities.) And this would seem to be the right guide to judicial interpretation in such cases; for we know that individual owners of property are not apt to transfer it to the community, or subject it to public servitude, without compensation, and such donation is not to be readily inferred.” To the same effect, 4 McQuillin Mun. Corp., sec. 1368, 1369; City v. Lessee of White, 6 Pet. 431, 8 L. Ed, 452; Buntin v. Danville, 93 Va. 200-204, 24 S. E. 830; Winchester v. Carroll, 99 Va. 739-740, 40 S. E. 37; Macon V. Franklin, 12 Ga. 239; West Point v. Bland, 106 Va. 792, 56 S. E. 802. [16] As to the user by the public of the land in controversy as an alley, such use was not unequivocally a use .as of right. On the contrary, the evidence is convincing that such strip was left unbuilt upon prior to 1860 merely because it was not needed for building purposes; and it was so left in 1860 as a private convenience appurtenant to the adjacent building belonging to the same owner, in order to afford a — 614 — side entrance to both the first and second floors of such building. Such use of such strip was a valuable one to the owners of it during the whole time from 1860 to 1907, and that use, even if we left out of view other uses to which they put a part of such strip, satisfactorily accounts for its having been left uninclosed and unbuilt upon up to the time the building was torn down in 1911, and negatives any presumption of dedication to public use. Since 1911 the facts leave no room for any presumption of dedication, and no claim is made on the part of the city that any dedication occurred since that time. And with respect to the user by the public of the land in controversy, the whole of such user is satisfactorily accounted for by the existence of the old alley aforesaid adjacent thereto, without the need for any implication of a dedication of such strip to public use. Whether that alley was a public alley, or merely an alley in common appurtenant to the abutting property, is immaterial on that subject. Indeed, to what extent public use was made of said strip itself is left vague and undetermined by the evidence. Much of the public user in question was doubtless of the old alley aforesaid; and such of it as invaded the strip of land in controversy, the evidence leaves equally consistent with being a user permitted by the landowners for their own private advantage, or a user in common with their private use, as with its being an adverse user by the public. Such public user, therefore, as there may have been was not, as aforesaid, unequivocally such, but the contrary. The act of the appellants and those under whom they derive title, in assenting to such public user was, therefore, not unequivocal in its meaning. There are many other facts and circumstances in evidence not mentioned in this opinion or in the statement preceding it, which would tend to strengthen, and none of — 615 — them tend to weaken, the position we have above taken, but in the view we have taken of the case they are immaterial, and, hence, are not stated. We conclude, therefore, that the question under consideration must be answered in the negative. For the foregoing reasons, we are constrained to reverse the decree complained of, and we will enter a decree to the effect that we are of opinion that a preponderance of the evidence in the cause sustains the bill, and shows that no dedication to the public has been made of the eight-foot strip of ground in the bill and proceedings mentioned; that the appellants are the owners in fee of such strip of ground, as against the city of Richmond and the public; and that such city be perpetually enjoined and restrained from interfering with, the rights of the appellants therein and thereto. Reversed.