Town of Como v. Pointer

Truly, J\, delivered the opinion of the court. The lucid and forceful opinion of the chancellor set out in this record is to our minds unanswerable that there was no dedication of the twenty-foot strip involved herein to the public as a street. This conclusion is irresistible in view of the fact that the land in question was never included in any plat prepared or authorized by the owners by which streets were dedicated or lots sold. The original map referred to, it is conceded, did not embrace the land here in question, and was prepared before there was any incorporation of the municipality. It appears probable from the evidence in the record that at the date of the first sale of any of the lots — and certainly prior to the incorporation of the town, in 1880 — there was a public [719] road traversing the land of appellees’ vendors. To this extent, at least, it might well be conceded that there was a donation or grant of a road or thoroughfare to the extent of the actual occupation, even though the same had never been originally condemned or appropriated by the county authorities. The record is silent on this point. It is evident, though, for several reasons, that there was no dedication at that date of this strip as a street. There was no municipality to which th'e dedication could be made or by which the dedication could be accepted; there was no map prepared by the owners making a dedication; there was no sale by the owners of lots in this particular locality with reference to any map,‘by whomsoever prepared, showing a street of the width now claimed. These observations, in addition to the reasoning of the chancellor in his written opinion, confirm us in the conclusion that there was no legal dedication to the public or municipality of the strip involved. An analysis of the description employed in the deed to Bass, as differing from the description employed in the deeds previously executed, when considered in connection with the clearly proven fact that the land conveyed to Bass was at the date of the conveyance under fence up to the road on the railroad right of way, together with the fact that the description employed in the Bass deed is applicable to the land of which he entered into possession, make it probable that the difference in the description in the deeds was made advisedly and with intention. Granting that, if the Bass deed was to be considered of itself, it might be avoided on account of the vagueness of the descriptive terms employed and the lack of certainty in stating a point of beginning, still, the fact that the record shows that Bass went into possession, with the knowledge and acquiescence of his vendor, of the land then under fence, including the strip in question, without any written or proven oral reservation of any interest by the vendor, is strongly persuasive that the description was intended to convey the land actually taken possession of. It is, [720] of course, firmly established that, where the vendor places his vendee in possession of land under certain boundaries or other descriptive terms, he will not afterwards be permitted to avail himself of any uncertainty or ambiguity in the terms employed. The contemporaneous construction by vendor and vendee evidenced by giving of possession will fix the true meaning and intent of the parties. It is plain to our minds, therefore, that Bass and his vendees are by lapse of time vested with a perfect title to the land in question. Conceding the correctness of appellant’s contention that there was no proper or legal proof of the conveyance of a right of way to the railroad company, this does not betteivits position. The proof shows that there was a road — whether public highway or not is not material — and that Bass did purchase land adjoining this road’, and that he and his vendees have been in open, notorious possession, with the knowledge and consent of his vendor, for a long term of years. In addition to this, as well said by the chancellor, the private right of individuals to demand a way of necessity over lands of other individuals, even if such right exists, confers no right on a municipality to claim such way as a public street. We are aware of the great advantage and convenience which no'doubt would result from having the street the same width throughout the municipality, but this court cannot legislate for the convenience of municipalities nor make contracts different from those entered into by the parties themselves. This furnishes simply another instance of the difficulties and inconveniences which may arise from changed conditions. Doubtless had the original owners dreamed, when the first plat of the then purely prospective town was made, of its future growth, the streets and squares would have been platted with greater regard to regularity in size and symmetry in shape and appearance. But no serious harm can result; for if the strip in question be demanded for the public use or convenience, the municipality has ample remedy provided'by the law. Affirmed.