Baker v. Johnston

21 Mich. 319, 1870 Mich. LEXIS 99

• Court: Michigan Supreme Court
• Decided: October 5, 1870
• Status: Published

Opinion

Campbell, Ch. J.

The action below ivas an .action of trespass for breaking the close of Baker, and defendant justified on the ground that he was acting' on behalf of the village authorities of Lawrence, Van Burén County, in entering upon the premises as a public square lawfully dedicated by Baker, and accepted on behalf of the public so as to preclude him from withdrawing the dedication. Most of the questions presented by the assignment of errors relate to the acceptance and sufficiency of the dedication.

In September, 1846, Baker made and caused to be recorded a plat of certain lands, including the village of Lawrence as then projected by him. On this plat, which was not so certified as to become a valid recorded plat under the statutes, the streets were laid out and sufficiently-defined, and the sizes of the lots and blocks were all given. The objection that the square in question was not described by its boundaries, courses, and extent, is not well taken, because the owner’s certificate, appended to the plat, was designed to explain all the dimensions, courses, and distances not otherwise made plain, and is a very proper part of the plan, and should be read with it. Combining the plan and the certificate signed by Baker, there is no uncertainty of the kind mentioned. The square is suffi.ciently identified, and the only contention is concerning .the public rights in it.

It is claimed, however, that, as this square, although marked “ Public Square,” is also marked as “ Bloch No. 6,” the latter designation is inconsistent with any public destination, becaiise the statute requires the person making the plat to describe “all the lots intended for sale by progressive numbers.” We do not think that this provision would invalidate the designation of a block by its number for any lawful public purpose. It was merely, designed to produce some degree of harmony -in the numbering, and to facilitate the location and description of lots. And in case a block offered to the public should be refused, it is evident that its being numbered with the rest in regular course would then tend to prevent any break in the continuity of the numbering, and lead to harmony instead of confusion. We think there is no. force- in this objection. It might also be suggested that as .the plat was not completed so as to make it a statutory dedication. when executed, it might not be proper to test it by the statute.

The plat was made and deposited for registry by the owner of the land, and he Subsequently sold lots which were described by ■ reference to it. A ■ question now arises whether this has, under the law of 1850, operated to make the plat effectual as if it had been legally complete in the first place.

The statute of 1850 consists of two sections, both of which profess to be retrospective. The first section in terms provides that where proprietors have platted lands and caused the plat to be recorded, without the proper acknowledgment, and have sold and conveyed lands by reference to the recorded plat, it shall have the same effect as if legally acknowledged and recorded. The second section provides that where a plat has been duly acknowledged, the record theretofore made shall be evidence as against the makers of the sufficient dedication, gift, and grant to the public of any portion thereof represented in such plat as a public square. Both sections save rights in present litigation.

• If the first section is broad enough to cover public squares, then .there was no occasion at all for the second. And we think it clear that it was not designed by either of these sections to create a dedication of a public square by any thing which did not operate when made as a complete conveyance in fee to the county of lands properly defined as -intended for public purposes. It was evidently considered that a difference might exist in the legal condition of lands destined for common highways and for other purposes, and that a dedication for one might not suffice for another.

From time immemorial it has been recognized common-law doctrine that land might be dedicated for use as a common highway without grant or covenant. An intention to dedicate, and a sufficient public acceptance by user or otherwise, made out a complete piiblic easement. And where an open square was designed 'merely for the enlargement -of a highway, and intended to be used as such, it would fall. within the same category. But there seems to be no reliable foundation for the idea that there could, at common law, be any setting apart of lands for any other uses • by dedication. Commons and analogous rights are always assumed to rest in grant; and all of those pleasure grounds and ornamental grounds which naturally concern the dwellers in the vicinage more than travelers, owe their existence in all probability to special grants and agreements. No other origin is anywhere suggested, and the common law furnishes no precedents for any other. There are many royal parks and liberties regulated by law, but we find no trace of private dedications for such purposes, analogous to highway dedications. .Am act has been passed during the present reign in Great Britain providing for the care of such grounds in certain cases, but it recognizes none except where a grant has been made to commissioners* trustees or some other body, and only interferes where such grantees neglect to keep up the grounds as they should be. The law is set out in full in Tulk v. The Metropolitan Board of Works, L. R., 3 Q. B., 93. No such thing as a right by mere dedication appears to be recognized anywhere. In Pearsall v. Post, 20 Wend., 111., affirmed 22 Wend., 425, it was held there could be no such dedication for a public landing, and the Supreme Court intimated very plainly that there could be no legitimate dedication except for highways, and it is somewhat difficult to determine how far the Court of Errors would have gone beyond them, if the case had called for a decision upon public squares.

But the decisions which have predominated, in this country, have undoubtedly assumed that the mere want of a grantee would not defeat a dedication of lands for well-defined public purposes. They have likened them to charitable trusts, which will not always fail for lack of a trustee. But as the general doctrine in the United States has not gone far enough to sustain vague charities (unless :in a few states where the English doctrine is more or less favored), the utmost that can be said is that where the purpose is clegr and well-defined, the courts will protect lands which have been dedicated to public uses, and which are so situated that the public purpose can be legitimately carried out. And as in the case of charities, the trust can never become operative until some authorized body exists to assume its management, so in the case of these public grounds, there is some difficulty in maintaining the public interest, unless it has some legitimate guardian. And there is no such settled law as would fix any such interest as binding against the land owner in all cases without some such guardianship. And there is no settled line of decisions which binds any one by a dedication to purposes which are not defined. An offer for public uses amounts to nothing until it is agreed what those uses shall be. And this seems to have been the difficulty which was sought to be remedied by section 2 of the statute of 1850.

There was no statute in force providing for the care of any public grounds not used as highways, except where they come under the control of incorporated cities and villages. The law regulating the laying out of plats required that it should appear not only what the public grounds were, but also whether they were “intended for streets, alleys, commons or other public uses,” and the plat thus designating these grounds, and properly acknowledged and recorded, operated as a conveyance to the county in trust for the purposes designated. The original statute contemplated such trusts as could be deduced from the plat itself, without resort to parol evidence. And where land had simply been designated as a public square, it did' not necessarily mean more than that it w.as for public uses, without showing what uses were intended. A dedication could be made .out by showing a parol agreement applying this general designation to specific uses. But the plat alone would be wanting in precision, and would not accurately define the trust purposes. The space may have. been destined for commons, or ■ schools, or county buildings, or burial purposes, or any other use which could be legitimately regarded as public; and nothing but extrinsic evidence or subsequent agreement could remove the ambiguity. And it is well known this objection had been suggested in reference to plats then existing. It certainly had always been our policy to discountenance the introduction of parol evidence to establish or define trusts. Our statute of frauds then in force explicitly required them to be in writing, and there is no reason to suppose that the statutory conveyance in the form of an acknowledged plat was expected to be any less certain than if it had been a deed for the same purposes.

When the curative act of 1850 was passed, probably most public squares which had not been resumed by the proprietors had become set apart, by their concurrence, to specified and legal purposes; and it was intended by the second section of that act to legalize the uncertain description which had generally been made certain by the parties, where the public right was not in controversy, and to prevent the vagueness of the original dedicatory act from defeating it, but it was not intended to affect any trust for public squares, unless the form of the statute had been complied with by such an acknowledgment and record as would operate originally as a conveyance to the county, of all grounds whose purpose had been sufficiently designated. It legalized such dedications as had assumed the form of complete statutory conveyances, and were only defective in not fully defining the purposes for which public squares were intended.

The present case must be determined by such principles as would govern it independently of the statute. There is no difficulty in ascertaining an original intent to have this land set apart for some public purpose. And the difficulty suggested by the record lies in ascertaining whether enough has been done to apply that intent and to make it irrevocable.

We think it must be assumed as the generally understood law at this day, and as law here, that there may be a dedication effectual against the land owner, without a statutory and formal conveyance to the county. It would conflict with recognized usage to hold otherwise. But it is not to be denied that the introduction of this anomaly brings with it many difficulties, and has had no tendency to simplify these rights, or to diminish litigation upon them. And the authorities furnish no adequate light upon the subject. There are many cases showing that such dedications may be made. But there are few, if any, which give much aid in determining how and when such dedication is made irrevocable by the acceptance of the representatives- of the public. And we can only reach a conclusion on this subject by considering the various elements which must be taken into the account.

If the square in controversy was intended as an expansion of a street, and thus made for what in law would be merely a highway, there would be no practical difficulty in determining its condition. It would fall into the same category with other roads, and be governed by the rules applying to such easements. But the plat shows that it was to be kept as a block separate from the adjacent streets and bounded by their exterior lines. And all the evidence negatives the idea of any other design. It was meant for some other purpose than a passage way. As a street it could have been made public bjr the action of the highway officers, or by a sufficient and continuous user for travel. But there are no township officers who have charge of any other public lands, except school district officers, and the purposes to which a square may be devoted would not all admit of any general user for specific purposes. We are met at once by the difficulty that lands intended for different public purposes cannot all be treated alike. And we also discover that in some places and for some purposes there are public officers representing the public, and there is a representation of the public also by a certain numerous class of undefined individuals; while in other places and for other purposes, it is not so easy to find any undoubted public representatives, whose official acts or whose customary user can be regarded as binding the commonwealth or municipality. As no land can become public without an acceptance by some one of the offer made by an attempt to dedicate, the question, who can make this acceptance, and in what way can it be made, is one of much nicety and great importance. And the time during which the offer should be regarded as open, is also important to be determined.

When a land owner sets apart portions of his plat for public purposes, it is done with the expectation that the use of such portions for those purposes will be advantageous to the rest of the property, or to the original proprietor. He has a right to expect that within a reasonable time the land will be put in condition to subserve those uses. If given for public buildings; there must be some reasonable assurance that they will be built, and if for ornamental purposes, that it will be made available for those. He cannot be bound to wait and abstain indefinitely from the use of his property upon the chance that at some time or other in the remote future the public use may be secured. And his efforts to induce such acceptance and use cannot properly be regarded as anything more than repetitions and continuances of his offer, requiring some responsive action. There can be no estoppel in favor of those who are not themselves estopped. And the public can only bind the land owner by acting upon his dedication before he has an equitable right to withdraw it.

Where the land platted falls within a city or incorporated village, and there are corporate authorities having control over public lands and easements, there is no difficulty in holding that the acceptance must come from the authorized public agents, in order to give the public any rights in the dedicated premises. If those who have authority neglect or decline to act, then no force can be given to the acts of those who have no authority. The statutes have provided for certain cases of public user of highways, but for nothing further. And dedications for other than highway purposes require acceptance in a different way.

But it sometimes happens, and it was so in the case before us, that land is platted where no incorporation exists, and where there is no certainty that the locality will become an incorporated town or city within any reasonable time. The population required for an incorporated village must be at least three hundred to the square mile, and the village itself must contain that number. And while that must be a very small village which falls short of three hundred, yet there are such villages, and if persons should see fit to provide squares and other conveniences and adornments for these small settlements, there would seem to be no sound reason why their validity should not be maintained, although an intention to make a dedication for such limited purposes may not perhaps be so easily inferred as for larger settlements. In determining whether a dedication has become complete, it will become necessary in such a case, as it is in the other case, to ascertain Avhat the person dedicating must be assumed to haAe reasonably expected would be done by others to meet his offer, and to secure the application of the property to such uses and in such a manner as will carry out the design of the dedication. And it may also become a serious question hoAV far the Avant of corporate capacity may interfere AA'ith the acceptance of a dedication, that is lacking in some of the elements of certainty.

Where land is dedicated as a public square, without other qualification,' and such dedication is accepted, the particular uses to Avhich it is devoted must be within the determination of one or both of the parties. The statute of 1850 indicates an intention to make such dedication sufficient, Avhere the plan is legally executed, and if so, it would seem to follow that the designation of the particular use should rest with the public aiAthoritics. But where there are no public authorities, and where the dedication is not statutory, the land OAvner must have it in his power to determine its purposes until by some action estopping him from further interference, he has bound himself to acquiescence in some definite use. And AAe think such acquiescence is not impossible.

If the owner should covenant with others, assuming to act for the general interests, that the land, upon conditions performed, should be inviolably and irrevocably devoted to any public use, unless those conditions were such as to require some permanent organization to perform them, it would seem that if the covenantees had any individual interest to connect them Avith the locality, an equity Avould arise to enforce the obligation.' The English act of Parliament before referred to appears to rest on such an assumption, and to regard such an obligation as binding. And if any voluntary agents should, at his request, and for the public benefit, expend money and assume actual possession of the premises upon the agreement on his part that such possession should be regarded as a definite acceptance for the public, we ' see no good reason why the same principle should not apply, rendering their joint acts analogous and equivalent to a partly-performed parol agreement between individuals. But any thing less than this woxxld be too vagxxe and shadowy a title to be susceptible of enforcement. The statute of frauds will not bear any exception which canxxot rest on the substantial equities of a partly-performed contract; and the principles of equitable estoppel will not apply where there has been no distinct and encouraged action in reliance upon the promises or representations of the land owner, which he is bound to know have beexx based oxx such reliance. And where no one legally represents the public, he cannot be compelled to recognize volunteers unless he has dealt with them and consented to admit their agency.

The facts introduced in evidence in this case to show a complete and accepted dedication, are of different kinds and significance. The sales, by reference to the plat, were admissible to bear upon the original intent to dedicate. But upon this intent the plat is too explicit to require further aid, and the intent is not disputed. Such sales have no tendency to prove an acceptance by the public, or an estoppel in favor of the public. It is not material to consider how extensive the private rights would be in lands intended for pxxblic enjoyment, and not essential to any right of passage or individual profit. Purchasers by a plat must understand upon what conditioxxs pxxblic spaces are promised by it, and if the public do not accept the grant, there has been no violation of the grantor’s implied covenant. • Streets, affording easements directly profitable and necessary to the use of lots, may stand on a different footing. But the fact that the defendant in this case was a lot owner, could give him no right to enter upon these premises, and could not qualify an entry made in a public capacity and not for private purposes. If the land is not a public square, there is nothing tending to justify the entry. If it is such a square, the ownership of lots became immaterial. No individual could have a private right of occupancy in any such premises.

Neither could a public acceptance be made out by the testimony showing that the premises had been used by the inhabitants or by traveling showmen for purposes of amusement, like ball playing and circus performances. Any vacant private property may be and is usually resorted to for such purposes, and they are in no sense public purposes. It is at least questionable whether an express dedication could be maintained for any such objects. Pearsall v. Post is decidedly adverse to such an idea, and in the case of Lee v. Lalce, 14 Mich. R., 12, such acts were not regarded as very material. The use for agricultural fairs is repugnant rather than favorable to the idea of a public acceptance. Such a use is no way conducive to public ornament and to the embellishment of a village. The fairs occur at distant periods, and the close fences and unsightly buildings, necessary for the purposes of stock exhibition, must be during the remainder of the year eyesores rather than attractions. Such uses have never been recognized as calculated to show the acceptance of a dedication of public grounds in a village, and we think, as intimated in Lee v. Lake, that they have no such tendency. So far as any of the proof offered in the case has any significance, it tends to show the purpose of dedication to have been to create an ornamental park, which is now perhaps the commonest purpose for which dedications of public spaces are devoted. And the only evidence of any joint action bearing upon the question of the acceptance of the dedication .by -any persons having a right as against Baker to claim as representing.the public, is to the same effect. That evidence requires some notice.

It appears by the testimony of Baker that he had no idea of revoking his offer to dedicate until the year 1865, when he resumed- possession. It also appears that some two or three years previous to this (the witnesses not all identifying the time precisely), there' was some concerted action in which the- plaintiff is claimed to have taken part, for the purpose of leveling and fencing the square, and planting it with shade trees. A subscription in writing was made by the plaintiff and others, and a general meeting or “bee” was had to do the work expressly for the public, and the enclosure was made in this way.

It is not within our province to decide how far this proof went, but we regard it as material and very significant. Under repeated decisions of this Court such a subscription could have been enforced as a valid contra.ct. Underwood v. Waldron, 12 Mich. R., 73; Comstock v. Howd, 15 Mich. R., 237. If it was the understanding between plaintiff and these parties who joined in the enterprise, that this was to carry out the design of preparing the ground lor the purpose of its dedication as a square or park, we think that in the case of an unincorporated village no better mode of acceptance and agreement could be devised, and that there is no reason why the contract and arrangement, so completed, should not be held binding. lYe think there is nothing else in the case which would justify a conclusion that the dedication had become irrevocable, but we think these transactions, if proven to the satisfaction of the jury, would be sufficient. And if so established, the subsequent acts of Baker in resuming ¡possession gave him no rights, and were unlawful. The assessment or non-assessment of tlie premises ive do not regard' as material, as tbe assessing officers do not represent the public for the acceptance of dedications.

The views we liave expressed render it unnecessary to refer more particularly to tbe several assignments of error. Tbe instructions and rulings in' conflict with tbeso views were erroneous. Tbe judgment must be reversed, and a new trial ordered, with costs to plaintiff in error.

Tbe other Justices concurred.