Bayliss v. Pottawattamie County

DILLOX. Circuit Judge. If the county were the only adverse claimant to the plaintiff, and were insisting that this square Had been effectually dedicated to it, it may, for the purposes of this case, be conceded that the plaintiff would be entitled to the relief sought. But after the transaction with the county judge, in 1853, Mr. Bayliss made two separate plats of the property, on which this square was indicated as open and unnumbered, with the initials “P. S.” therein, and containing words referring to it as a public square. It would seem, from a reference to his acknowledgment of July 14th, 1853, and to the latter part of the grant to the public of May, 1854, acknowledged June 1st, 1854, that Mr. Bayliss omitted all reference to the square. But in the surveyor’s certificate indorsed on this plat, the surveyor twice refers to the square in question as a public square, and Mr. Bayliss “declares and acknowledges the above plat and surveyor's certificate to be correct;” and on September 26th, 1853, he acknowledged the plat in conformity with the statute' on that subject. In the writing indorsed on the plat of 1854, the ground in question is referred to as a public square. This makes an effectual dedication under the statute—certainly when it is accepted by the city. The proofs sufficiently show such acceptance by appropriations of money for its improvement and by the exercise of legislative and municipal power over it as a public square. If Mr. Bayliss intended to exclude this square from the ground dedicated to the public, he failed to accomplish his intention. A purchaser consulting the recorded plats, with the acknowledgments and certificates, would be justified in concluding (as several intelligent witnesses state they did in fact) that the square was dedicated to the public. Whether we look at the recorded plats, with their certificates and acknowledgments, or to the extrinsic evidence as to Mr. Bayliss’ repeated statements to persons proposing to purchase lots, that this was a public square, and that not only the immediate purchasers, but the public, have acted upon these plats and these statements, it is clear that Mr. Bay-liss and his representatives are brought within the principle of equitable estoppel which so often applies to this class of cases. Cincinnati v. White, 6 Pet. [31 U. S.] 431; Dill. Mun. Corp. §§ 493, 494. It is claimed, however, that, Mr. Bayliss being dead, his statements and declarations are not competent evidence against the plaintiff. Code Iowa 1873, § 3639. I do not stop to examine of determine the point, for, if well taken, it would not exclude evidence of acts of his testified to by many witnesses, such as that he charged and received more for lots fronting on the square (simply for the reason that it was public) than for lots elsewhere, which, in every other respect, were worth as much, and the other significant fact, that, although he demanded and received a deed for the courthouse lots, he made no such demand in respect of the square. The city was incorporated before either of [1085] tlie plats was recorded. The statute declares that “the acknowledgment and recording of such plat is equivalent to a deed in fee-simple of such portion of the land as is therein set apart for public use, or is dedicated to charitable, religious, or educational purposes.”The city is the representative’of the public rights in this square. A decree will be entered dismissing the plaintiff’s bill against the county, and also against the city, which, by intervention, also became a party to the suit. Decree accordingly.