Wood v. National Water Works Co. of New York

The opinion of the court was delivered by HoetON, C. J.: The plaintiff, George B. Wood, being the owner of land now in part embraced by the City of Kansas, in this state, in 1869 platted such land into blocks, lots, streets and alleys. He, with others who owned contiguous land and who joined in the platting of the city, attempted to make an express reservation by a note upon the map and plat of the city signed by them, in the following language: “It is hereby expressly understood that no right or privilege whatsoever is hereby granted, conveyed or dedicated to any purchaser, excepting the simple easement or right of travel over said streets, avenues or alleys, but that all other rights and privileges are hereby expressly reserved to the undersigned proprietors.” Subsequently the defendant was authorized .by the City of [595] Kansas to construct its water-mains through the soil below the streets of the city, and under such license proceeded to place the same under the streets, for the purpose of conducting its water from its reservoir in Jackson county, Missouri, into and through the city. The plaintiff alleges that the defendant has no right to enter upon the premises under the streets of the City of Kansas, without his consent, and that he has been damaged in the sum of $20,000 by the alleged wrongful action of the defendant. It is claimed upon the record that two questions are presented for decision: First: Can the proprietor of land, platting and laying out the same into a city or town, under the provisions of §§ 1 and 6 of ch. 78, Compiled Laws of 1879, reserve the fee simple in the soil beneath the surface of the street so platted? Second, If this question be answered in the affirmative, then, under the language of the reservation in this case, had the defendant the right to enter upon such streets and excavate therein deep holes beneath the surface in which to lay its water-mains, through which to conduct water for sale where it might find a market for the same? In disposing of this case upon its merits, it is unnecessary to decide whether a proprietor platting a city, or a part thereof, may reserve his right to the minerals beneath the surface of the streets. (City of Dubuque v. Benson, 23 Iowa, 248; Tousley v. Mining Co., 24 Kas. 328.) In this case, the plaintiff did not reserve in himself the fee in the soil beneath the surface of the streets against the public generally, but his reservation was that no right or privilege whatsoever was granted, conveyed or dedicated to any “purchaser, excepting the simple easement or right of travel over said streets, avenues or alleys.” Conceding, for the purposes of this case, that the proprietor platting a city or town may reserve for himself the right to all the minerals beneath the surface of the streets and alleys, including the right of mining all subterraneous veins of ore, he cannot, in our opinion, lay out and plat a city, or a part thereof, dedicating the streets and alleys for public uses, under the provisions of said chapter 78, and by such a reservation as [596] is stated in the note written upon the map or plat filed by him, limit or interfere with the use of the streets, avenues or alleys for public, purposes. Section 1 of said chapter reads: “ Whenever any city or town, or an addition to any city or town, shall be laid out, the proprietor or proprietors of such city or town, or addition, shall cause to be made out an accurate map or plat thereof, particularly setting forth and describing : First, all the parcels of ground within such city or town, or addition, reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons, or other public uses; and second, all lots intended for sale, by numbers, and their precise length and width.” Section 6 is as follows: “Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses in the county in which such city or town, or addition, is situate, in trust and for the uses therein named, expressed, or intended, and for no other use or purpose.” Under the allegations in the petition, there was a perfect statutory dedication of the parcels of land named therein, for public purposes. (City of Des Moines v. Hall, 24 Iowa, 234.) In this state, the fee of all real estate, when dedicated to public use by the proprietor of any city, vests absolutely in the county wherein such real estate lies, and the county forever afterward holds the property in trust for such use; but the city has control over it as another agent of the public. (Railroad Co. v. Garside, 10 Kas. 552.) The power of the public over the streets of a city is not confined to travel only, but the public may construct drains, sewers, gutters, gas-pipes, cisterns, etc.; and in case of a dedication of the street, such uses are contemplated. The city corporation may make every use of .a street which reasonably conduces to the public convenience and enjoyment. The use of streets for the purpose of laying [597] down water-pipes, stands upon the same principle as tbeir use for sewers and gas-pipes. As cities of the second class in this state have power'to supply the inhabitants with water, the authorities thereof may use, or, as an incidental power, may permit the contractor or other parties to use, the streets for this pui’pose. (Comp. Laws of 1879, eh. 19, §§ 31, 32, 36, 54, 61, 68; 2 Dillon on Mun. Corp. [3d ed.], §§ 688-697; Commissioners v. Hudson, 2 Beas. [N. J.] 420; City of Cincinnati v. Penny, 21 Ohio St. 499; West v. Bancroft, 32 Vt. 366; Kelsey v. King, 32 Barb. 410; Warren v. Goodhaven, 30 Mich. 24.) After the plaintiff laid out and platted his town lots, and then acknowledged, certified, filed, and had recorded the map thereof in the office of the register of deeds of "Wyandotte county, the fee of the streets and alleys vested in the county of Wyandotte, yet the control of such property is almost entirely and absolutely in the City of Kansas. 'The rights given by this dedication are not taken away by the attempted reservation written upon the map or plat, because such reservation must be deemed inoperative and void as against the public. It is not in accordance with the terms of the statute vesting the fee of the property dedicated for public use in the county, and to recognize such a doctrine would be not only to violate the statute, but would take from the direction and control of the public authorities the use óf the streets for many necessary and important purposes for which streets are usually devoted to satisfy the wants and conveniences of the people. (City of Des Moines v. Hall, supra.) We conclude that the defendant had the right, under the license granted it, to enter upon the streets in controversy and make excavations therein beneath the surface of the streets so as to lay its water-mains through which to conduct water to supply the inhabitants of Kansas City. The order and judgment of the district court must be affirmed. All the Justices concurring.