City of Owensboro v. Muster

Opinion of the court by JUDGE BURNAM Affirming. The appellee instituted this suit in the Daviess circuit court to enjoin appellant, city of Owensboro, from prosecuting him in the city court, for an alleged obstruction of Elm street, in that city. He alleges that in the year 1870 he purchased from one Hoover a lot of ground beginning at the northeast corner of Poplar and Harriet streets, and running eastward with Harriet street to the' west line of the school house lot, and thence northward ‘ with the line of the school house lot 95 feet, and thence westward parallel with Harriet street to. a point in the east line of Poplar, and thence with Poplar to the beginning; that the city is asserting the right to extend Elm street across the end of his lot next to the school house lot, and had instituted a prosecution against him in the city court, for obstructing Elm street, because he has refused to surrender this portion of his lot to the city to be used by it as a street. The city answered that, at the time appellee bought the lot of ground described in his petition, the part of it, next to the school house lot, had been used by the public for more than fifteen years, as one of the public streets of the-town; and that in recognition of this fact, appellee had conveyed by general warranty deed, to one Winter, a part of the lot; and had described it as “a certain lot or parcel of ground lying and situated on the corner of Seventh and Elm streets, and running with Seventh street 117 feet, thence north 47 feet, thence east 117 feet to the west margin of Elm street, thence south with Elm street, 47 feet to the .beginning;” and that he had fenced off, between the [860] lot sold to Winter and the school house lot, a strip of land 55 feet wide which was a prolongation of Elm street; and that by reason of these acts he was estopped from asserting claim thereto.' The evidence in the case is quite conflicting. Appellant admits that shortly after he purchased the lot, he built a fence about 55 feet from the line of the- school house lot, thinking that the city would ultimately want to purchase the ground for street purposes, but he claims that to preserve his ownership he- maintained a temporary fence across the ends of the strip between his property and the school house lot; that sometimes persons would tear down a panel or two, but that he always replaced it; and that when he executed the deed to Winter, calling for Elm street, he anticipated that the city would finally purchase the land and open the street, but that he never intended to part with his title without compensation. Whilst Mr. Winter testifies that at the time he purchased the lot from appellee, the public travelled over and- used the ground. in dispute, and that they did so for several .years, but that appellee finally fenced it up. There is little or no evidence to show an acceptance of-the alleged dedication by the city, or that it ever exercised authority over the land; and it is admitted that about the year 1892, the city offered to pave the street upon the condition that appellee would abandon his claim thereto. There is no claim that appellee expressly dedicated the land in dispute, but that the dedication arises by implication from the deed and other acts of appellee. One can not be deprived of his property for public use, against his consent, without compensation and a mere reference in a deed to a street for purposes of location and [861] description is not alone sufficient to uphold a dedication by implication. It is essential to the validity of a dedication of this character that there should be an intention to dedicate on the part of the owner of the land. Dedication is therefore a conclusion to be determined from all the facts and circumstances in the case, and we are of the opinion that the purpose to dedicate the strip of ground in question, has not been clearly established by the testimony in this case. The question of Winter’s right to use the land back of bis lot as a. street is not involved in this proceeding and it is not necessary for us to determine what his rights would be in reference thereto. Judgment affirmed.