Boerner v. McKillip

The opinion of the court was delivered by AlleN, J.: [518] 1- tio£-pKiT‘ [517] The sole contention in this case is as to whether the piece of land in controversy is the property of the plaintiffs in error or an alley in the town of Colby. It clearly appears from the findings of the court that there was no statutory dedication as an alley, but that the map executed and filed by the town-site company showed the ground in controversy as a lot. It is claimed, however, that there was an actual dedication of the land, which is good at common law. About March, 1885, the persons who afterward formed the Colby Town-Site Company entered into negotiations with the Union Pacific Railway Company for the purchase of the lands which were thereafter platted for the town site of Colby. The company was incorporated on the 14th of April, 1885. The company caused a lithographed plat of the land to be made, and on the 10th of April sold lot 9, in block 21, to Walker, Youssee & Smith, the consideration being the erection of a building thereon; and at the time of this sale the president and secretary of the town-site company represented to the purchasers that the strip of land in controversy was intended to be an alley. The lithographed [518] map was referred to ia 'making the negotiations. After that time, and on about the 10th day of May, the town-site company changed its plan and decided to make a lot of this piece of ground instead of an alley, and immediately after that decision notified Mr. Walker of the intended change, to which he made no objection or assent. Oa the 20th day of July, 1885, the town-site company received its deed from the railway company; and thereafter, on the same day, filed for record its unacknowledged plat of the town site of Colby, showing the land in controversy as a lot. Afterward, on the 31st day of July, 1885, it conveyed lot 9 to Walker, Youssee & Smith, pursuant to the agreement theretofore made. Can it be said that these facts show a dedication of this piece of land as an alley? Most of the authorities cited by the defendant in error are not applicable to the case under consideration. There is no question that a street may be dedicated to the public in other ways than by acknowledging and recording a plat. The fundamental difficulty in this case is, that at the time it is claimed that the town-site company dedicated the ground as an alley it had no title, and was not the owner of it. It could not then make a valid dedication. In the case of Hagaman v. Dittmar, 24 Kas. 42, it was held that an attempted dedication by a person who was acquiring a homestead of a portion thereof for a public burial ground, which was ratified and confirmed after he obtained the patent to the land, was good, where the public had accepted and continuously used the ground for burial purposes from year to year, both before and after the patent was issued. And in the case of City of Cincinnati v. Lessees of White, 6 Pet. 431, while the parties laying out the town had only an equitable title at the time the plat was made, after the- legal title was obtained, they ratified and confirmed the first appropriation of the ground to public uses. [519] 2-nodcstoppeiT [518] If will be observed in this case, that not only was there a want of any ratification of the original plat of the strip as an alley after the town company obtained the title to the land, [519] but that within about a month after the contract was made with Walker, Youssee & Smith for the sale of lot 9, and when they had only made a cellar thereon, the town company changed its plan, and notified the purchaser of that change, to which he did not dissent. Afterward, the town company received its title, filed its map, and executed and delivered to Walker, Youssee & Smith a deed to lot 9. This deed must be held to refer to the legally-executed and recorded map, which showed a lot, not an alley, adjacent thereto. It does not appear that any objection was made by Walker, Youssee & Smith to the form of their deed, or to the closing of the alley. It then cannot be claimed in this case that there was any ratification of an intended dedication as an alley after the town company became the owner of the land, but, on the contrary, there was an express renunciation of that purpose, which was brought directly to the knowledge of plaintiff’s grantor. In order to sustain a dedication, then, we must first hold that persons having only a parol contract for the purchase of land may dedicate it to public uses, so as to estop them and their grantees after acquiring a legal title. The authorities hold the reverse of this proposition. In Lee v. Lake, 14 Mich. 12, it was held that “ The dedication of premises to public purposes, in a plat acknowledged and recorded by one who did not own the property at the time, cannot have the effect of a conveyance, although he afterwards purchase it; and, in the absence of subsequent facts and circumstances which would constitute an estoppel, he may reclaim the premises.” (See, also, Nelson v. City of Madison, 3 Biss. 244; McShane v. Moberly, 79 Mo. 41; Niagara Falls Co. v. Bachman, 66 N. Y. 261; Holding v. Cold Springs, 21 id. 474; Bushnell v. Scott, 21 Wis. 457.) In Brooks v. City of Topeka, 34 Kas. 277, it was said: “No one other than the owner, or some one authorized to act for him, can plat or lay out a town, or an addition thereto, so as to convey to the public for its use the streets and alleys designated on such plat.” [520] In Smith v. Smith, 34 Kas. 293, it was said: “ We do not think that a person who is occupying government land, and occupies the same under the preemption or homestead laws, can dedicate it, or any portion thereof, for a public road, until he has done all that he is required to do to obtain the title to the land under such laws.” In that case it appeared that the person who, it was claimed, had made the dedication afterward acquired full title to the land. See, also, Armstrong v. City of Topeka, 36 Kas. 432; The State v. O’Laughlin, 19 id. 504. The findings in this case show an expression of intention on the part of the town company to dedicate, rather than an actual dedication. Both of the parties in this case claim title derived from the Colby Town Company through deeds executed by its officers after the corrected map had been filed for record. The plaintiff below was interested in the lands in controversy only by way of easement appurtenant to the lot he purchased. On the other hand, the defendants below, plaintiffs here, bought the ground and paid $450 therefor, the record showing a perfect title in their grantor. No strong equity urges the relief sought by the plaintiff. On the other hand, the defendants appear to have the better claim. We think the law is clearly with them. The case is reversed, with direction to render judgment on the special findings of fact in favor of defendants for costs. All the Justices concurring.