Hogue v. City of Albina

Bean, J. — The contention of the defendant is, that plaintiff by making and exhibiting to intending purchasers the second map or plat of Albina addition showing the north line of Morris street to be a continuous straight line, and by selling lots with reference to this plat, thereby dedicated to the public the south fourteen feet of block 1 of this addition as shown on the recorded plat. It is not claimed that plaintiff ever expressly dedicated this strip of land to the public, or ever bad any express intention so to do, but it is 186 sought to conclude him, upon the ground that he has suffered the public and individuals, relying upon his acts and conduct in exhibiting the second map to intending purchasers and making sale of lots by reference to such plat, to acquire rights upon the faith that he has devoted this strip of land to the use of the public as a part of Morris street. The law is well settled that when the owner of land lays out and establishes a town thereon and makes and exhibits a map or plan of the town, with lots, blocks, streets and alleys, and sells lots with reference to such plan, he thereby dedicates to the public the streets and public ways marked thereon; that the sale and conveyance of lots according to such plan or map implies a grant or covenant that the streets or other public places represented by the map shall never be appropriated by the owner to a use inconsistent with that represented by the map on the faith of which the lots are sold, and in this state such dedication becomes irrevocable, and no formal acceptance by the public or corporate authorities is necessary. (Carter v. City of Portland, 4 Or. 339; Meier v. The Portland Cable Railway Co. 16 Or. 500.) It is, however, conceded in this case by the plaintiff that he did dedicate to the public a portion of his land as a part of Morris street, but the controversy here is, whether the strip of land so dedicated is eighteen feet wide, as claimed by plaintiff, or thirty-two feet, as contended for by the defendants, and this question must be determined from plaintiff's intention as evinced by his acts and conduct-In order to constitute a dedication by parol, there must be some acts proved evincing a clear intention to devote the premises to the public use. (Carter v. City of Portland, 4 Or. 339.) It is essential that the donor should intend to set apart the land for the use of the public, for it is held without contrariety of opinion that there can be no dedication unless there is a present intent to appropriate the land to the public. (Elliott on Roads and Streets, 92; 2 Dill. Mun. Corp. § 636.) This intention is not a secret one, but that which is expressed in the visible and open conduct of the owner. 187 His acts and declarations may and often do evince an intention to dedicate land to the public as a highway when he had no real intention of so doing. His intention is to be inferred from his acts and declarations, but such acts and declarations must clearly indicate an intention on the part of the donor to dedicate the land to the public, or no dedication can exist. When it is sought to establish a dedication' by the sale of lots with reference to a map or plat, the extent of such dedication is to be determined from the consideration of the whole map, the chief object being to ascertain the intention of the donor; for the cardinal rule of construction is to give effect to the intention of the party as manifested by his acts. A dedication is not presumed, but must be shown by the acts and declarations of the owner of such a public and deliberate character as clearly show an intention on his part to surrender his land for the use of the public, and the burden of proof is on the party asserting such dedication. In Tinges v. M. & C. C. of Baltimore, 51 Md. 609, it is said: “It is well settled by the decisions of this court that an intent on the part of the owner to dedicate his land to the particular use alleged is absolutely essential, and unless such intention is clearly proved by the facts and circumstances of the particular case, no dedication exists.” (McCormick v. Mayor, 45 Md. 524.) So in Shellhouse v. The State, 110 Ind. 513: “To constitute a valid dedication, there must have been an actual intention on the part of the owner or owners clearly indicated by unequivocal acts or conduct to dedicate the land to the public for use as an alley-(Tucker v. Conrad, 103 Ind. 349, and cases cited.) As was in effect said in the case above cited, unless there appears an actual intent to dedicate on the part of the owners, the court cannot do otherwise than to find that there was no dedication.” So in Holdane v. Trustees of Village of Cold Spring, 21 N. Y. 477: “The owner’s acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use. If they be equivocal and 188 do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication.” In Lownsdale v. City of Portland, 1 Or. 405, Deady, J., in discussing this question, says: “The burden of proof rests on the defendant to show a dedication. It must be clear and satisfactory. * * * The security and certainty of the title to real estate are among the most important objects of the laws of any civilized community. Around it the law has thrown certain solemnities and formalities so that the fact may be known and read by all men. What a man once had he is not to be presumed to have parted with, but the fact must be shown beyond conjecture. And although in the case of streets and public grounds in towns, from the nature of the case a dedication may be shown by acts resting in parol, they must be of such a public and deliberate character as makes them generally known and not of doubtful intention.” To the same effect, Lee v. Lake, 14 Mich. 11; People v. Jones, 6 Mich. 176; Niagara Falls Bridge Co. v. Bachman, 66 N. Y. 261; Rowan’s Executors v. Portland, 8 B. Monroe, 232; Angell on Highways, § 142; 5 Am. & Eng. Ency. of Law, 400, and note. From these and other authorities that might be cited it may be stated that the question of intent to dedicate is the paramount one in all cases of disputed dedication and is to be determined as a question of mixed law and fact, from the evidence in each particular case. The controversy here is not between a purchaser of lots fronting on Morris street and the plaintiff, but between him and the city of Albina acting on behalf of the public. The claim of the city is based wholly upon the fact that the north line of Morris street as shown upon the second map is a continuous straight line» and for that reason it is insisted that plaintiff is estopped from denying the dedication of the land in controversy to the public as a part of that street. This second map was made and published on the same day the original plat of Albina addition was recorded, and was evidently designed 189 to be used by the plaintiff or his agents in the sale, of lots, and to this end it undertakes to represent the public ways connecting with the streets in this addition, the distance from- the school-houses, churches and public lines of transportation, and has published thereon a statement of the many advantages claimed for this particular property. As far as Albina addition is concerned, it appears to be an exact copy of the recorded map, except that the size of lots and width of streets are not marked thereon. In fact, the map in evidence and by stipulation of the parties, conceded to be a copy of the recorded map, appears to be one of the second maps published by plaintiff, with the portion representing the adjoining property removed, and with the size of lots and width of streets marked thereon in pencil. So that as far as plaintiff’s property is concerned there is no difference whatever in the two plats, but one is an exact copy of the other, and there is nothing on the second plat to indicate that Morris street is more than forty-six feet wide, unless it be that the north line of this street is represented to be a continuous straight line from the southeast corner of this addition, extending west. Block 1 of this addition, which fronts on this street, appears to be the same size and contains the same number of lots as the other blocks in the addition, which could not be the case if a strip fourteen feet wide from the south side of this block is a part of Morris street. From an inspection of the map, we think it much more probable that plaintiff only intended to represent the width of Morris street as actually located in front of his property, than its width in front of the adjoining property, which he did not own or in any way control. As we have already seen, in order to constitute a common-law dedication; “the owner’s acts must be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the public use,” and articularly is this true when there has been a statutory edication by recording an acknowledged plat, and it is ought to establish another and different dedication by the 190 acts and conduct of the owner in exhibiting to intending purchasers a map prepared on the same day as the recorded plat and selling lots by reference to the second map. The second plat to have this effect should be essentially different from the recorded one, showing on its face an intention on the part of the owner to make an additional dedication. In this case, the second map as far as plaintiff's property is concerned is precisely the same as the prior recorded one. The dimensions of streets, lots and blocks are not exhibited upon it, nor does it contain any evidence of an intention to make any dedication different from that already made. It is simply a plat used by the plaintiff for his own convenience in selling the property. Where the owner of property has complied with the statutory requirements in making and filing a plat of his proposed town or addition, we know of no rule of law that requires him to he hound by another or additional dedication simply because he makes a copy of his recorded plat for his own convenience in disposing of his property, upon which the lines do not appear with that complete accuracy as on the recorded plat, and especially when it does not clearly appear to be radically different from the recorded one It follows, therefore, that the judgment of the court below must be affirmed.