The opinion of the court was delivered by
Brewer, J.:
In an action in the district court of Wyandotte county, the title of defendant in error to a tract of land in Wyandotte city was adjudged good. The plaintiff in error, defendant below, alleges error. It is unnecessary to inquire as to the title of the defendant below, for unless the plaintiff’s title can be sustained the judgment must be reversed. The single question therefore is as to the validity of plaintiff’s title. The tract in controversy is a tract situated on the northeast corner of Huron place, in the city of Wyandotte. It is admitted by the pleadings that the title of this tract was in the Wyandotte city company. In the plat made and filed by it, certain grounds were designated as public grounds, the tract in controversy being with others marked “church lot,” and in the dedication on the plat appears the following language:
“Also, Huron place, excepting a lot on the southwest corner, one on the southeast corner, and also one on the northeast corner, which are respectively 150 feet square, and dedicated to church purposes. Also, excepting so much as is occupied by the Methodist church south, and by the burying-ground adjoining said church, as represented on the map.”
The tracts marked as “church lots” on said Huron place, on the southwest and southeast corner respectively, were in fact conveyed to and used by certain churches, and the question in this case is as to the northeast corner, which is claimed by plaintiff. The case was tried by the court without a jury, special findings of fact made, and the title of the plaintiff sustained. It is not pretended that any formal deed was ever made by the Wyandotte city company to plaintiff, but it is claimed that, upon the testimony, equitably, it is sufficiently shown that the plaintiff was the beneficiary of the reservation or dedication indicated by this plat of the tract in controversy. [635] The question is a difficult one, and attended by many embarrassments. In the first place, it is claimed by defendant that such plat and dedication was void under the statutes of Kansas respecting dedications; that therefore the title to the ground remained absolutely perfect in the Wyandotte city company; that retaining absolute control, its subsequent deed to the defendant vested in it a good title; that whatever talk, or suggestion, or thought, may be attributed to the city company, as it never culminated in a deed, amounts to nothing; that in Kansas no dedication for church purposes can be sustained, because a church purpose is not a public purpose, and the only dedication authorized under our statutes is that which operates as a conveyance in fee to the county in trust for public uses. Sections 1 and 6 of the act respecting the laying-out of cities and. towns read as follows:
“Sec. 1. 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.”
“Sec. 6. 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.”
This law was borrowed from the state of Missouri, where it was in force as early as 1835, and with no material change has continued in force to the present time. The supreme court of Missouri, in the case of The City of Hannibal v. Draper, 15 Mo. 634, construed this statute so as to sustain a dedication for church purposes. In that case it appears that [636] in 1836 Stephen Glascock filed in the office of the recorder of Marion county, a duly acknowledged plat of the town of Hannibal. Among other memoranda on the map was the following: “Lots numbered 2, 3, 4, in block 26, is intended for ‘church grounds.’ ” The reservation of the public square and landing was made by the declaration, in writing, that particular lots were intended for that purpose. Across the public square, the words “public square” were written, and across the church grounds were written the words “church grounds.” Draper claimed the lots in 'controversy in that case under a quitclaim deed from Glascock, made subsequent to the making and filing of the plat; and had inclosed them. The court held that Draper was affected with notice, and he bought only such title as Glascock pretended to have; that the map was evidence of some pretense to set apart the lots for church purposes, and that the plat was strictly within the provisions of the statute, and conveyed to Marion county the lots for the use of the inhabitants of the town of Hannibal. The court adds:
“It is presumed that in the nineteenth century, in a Christian land, no argument is necessary to show that church purposes are public purposes, and that the inhabitants of a town have an interest in ground reserved for such a use. To deny that church purposes are public purposes, is to argue that the maintenance, support and propagation of the Christian religion is not a matter of public concern. Our laws, although they recognize no particular religious establishment, are not insensible to the advantages of Christianity, and extend their protection to all in that faith and mode of worship they may choose to adopt.”
On the one hand, it is claimed that that decision is binding on this court, upon the rule laid down in Bemis v. Becker, 1 Kas. 226,that “when one state adopts a law from another, * the judicial construction given to the statute in the state where it originated, follows it to the state of its adoption.” On the other hand, it is contended that this court is not bound by such construction, because here is recognized as of binding force the absolute separation of church and state, and there[637] fore neither the state nor any political subdivision thereof can take property in trust for church purposes, the same not being a public purpose within the purview of our laws. Conceding for the present that the construction placed by the supreme court of Missouri upon the statute is erroneous, and that a church is not a public purpose within the scope of that statute as in force in this state, the question arises whether independent of the statute, a reservation-or dedication can be enforced for church purposes. For this, we shall assume that a church is not a public purpose. It is of course not a public purpose in the sense that the state can assume control, or that taxation or eminent domain may be invoked in its behalf. We have no state church, and the settled rule in this country is of entire separation between state and church; and yet that separation is not so complete that the state is indifferent to the welfare aud prosperity of the church. This is a Christian commonwealth. We believe that the best interests of both are promoted by enforcing entire separation between the state and the church; and yet it is universally recognized that religion lies at the basis of morality, and that for the purpose of securing the best and most thoroughly extended morality, it is fitting that religion and the church be recognized; and everything done by individuals to support and further their interests, is regarded with favor in the law and protected by the courts. To this end every dedication, reservation, or donation to the support of any individual church, and of all alike, is universally upheld.
It is unnecessary to affirm that every dedication must be tested by the mere letter of the statute. That provides for a specific mode, a statutory dedication; and yet it is a matter of common knowledge that a dedication outside of the statute is recognized and enforced in this state and elsewhere. (Cemetery Association v. Meninger, 14 Kas. 312.) And the same principle obtains, although the object of the dedication is not strictly a public purpose in the technical and limited sense of the term. In 1 Burrill’s Law Dictionary the definition given of dedication is, “appropriation to a certain use or uses.” [638] Ordinarily it is true it is limited to a strictly public use, and yet it may have a broader signification, or at least the principle which underlies and supports it may be invoked to support an appropriation to uses not strictly and technically public. It would be a useless labor to trace in the old common law the history of the doctrine of pious and charitable uses. It is enough to say, that after a variety of decisions and legislation the law seemed to culminate and be settled by the statute of 43 Elizabeth, chap. 4, (1601,) commonly called “the statute of charitable uses,” and from that time on the validity of appropriations to such uses was considered a settled thing at the common law. And while in this country that statute as a whole has not been accepted as of force in all the states, yet the principle which underlies it has been universally recognized, at least so far as any question like the one before us is concerned. Thus in Trustees v. Canal Co., 9 Ohio St. 287, the court said:
“But one of the earliest demands of every social community upon its lawgivers, at the dawn of its civilization, is adequate protection to its property, and institutions, which subserve public uses, or are devoted to its elevation, or consecrated to its religious culture, and its sepulchres; and in a proper case, the courts of our state might be driven into the recognition of some principle analogous to that contained in the statute of Elizabeth, as a necessary element of our jurisprudence.”
And in the case of The Town of Pawlet v. Clark, 9 Cranch, 332, the supreme court of the United States by Story, Judge, uses this language:
“For the reasons then that‘have been stated, a donation by the crown for the use of a non-existing 'parish church, may well take effect by the common law as a dedication to pious uses, and the crown would thereupon be deemed the patron of the future benefice when brought into life. And after such a donation it would not be competent for the crown to resume it at its own will, or alien the property without the same consent which is necessary for the alienation of other church property.”
See also the cases of Beatty v. Kurtz, 2 Pet. 566; Williams [639] v. Presbyterian Society, 1 Ohio St. 478; 2 Smith’s Leading Cases, 240; Trustees v. Council of Hoboken, 33 N. J. Law, 13; City of Hannibal v. Heirs of Draper, 36 Mo. 332; Schmidt v. Hess, 60 Mo. 591; Mankato v. Willard, 13 Minn. 18; Reid v. Board of Education, 73 Mo. 295; 2 Dillon on Mun. Corp., 3d ed., § 648; Antones v. Eslava, 9 Porter (Ala.), 527.
Some of these cases are very strongly in point as to many of the questions arising in the case at bar. Take for instance the case from 2 Peters: in that ease it. appeared that on the original plat of an addition to Georgetown, a lot of ground had been marked “for the Lutheran church,” and the Lutherans of Georgetown used the place from that time as a place of burial. They also erected a log house on the premises, which was used as a church for public worship by them. The owner of the ground, during his lifetime, frequently spoke of it as belonging to the Lutherans. After a while the log house fell into decay, and unsuccessful efforts were made by the Lutherans to rebuild. . Fifty years having passed away, the heirs of the original owner attempted to take possession of the ground. There had been no incorporation of the Lutherans, nor were there any persons who as trustees could hold the property, yet the supreme court held that there was a dedication of the lot to public and pious uses, and that such a dedication would be upheld, although there was no specific grantee or trustee. That case therefore is authority for three propositions: First, that there may be a dedication of ground to pious.uses; second, that the platting of a tract of ground under circumstances similar to those in the case at bar is sufficient evidence of a dedication; and third, that the lack of an incorporation on the part of the body for whose benefit the dedication was made will not affect its validity. Of similar force is the case of The Town of Pawlet v. Clark, 9 Cranch, supra. There the syllabus reads:
“Land at common law may be granted to pious uses before there is a grantee in existence competent to take it, and in the [640] meantime the fee will be in abeyance. Such a grant cannot be resumed at the pleasure of the crown.”
See also the eases from 1 Ohio St. and 33 N. J. Law, supra, as to the effect of a lack of incorporation on the part of the beneficiaries of the dedication. Also, Post v. Pearsall, 22 Wend. 472, in which Senator Verplanck says:
“Such an appropriation, our courts have held, will take effect without any formal deed, or any matter of record, or any specific grantee to take the title.”
The doctrine of estoppel is invoked, and justly, too. Where a party plats ground into lots and blocks, leaving a certain place for streets, others for public grounds, and sells lots with reference to such plat and. upon the faith thereof, he may very properly thereafter be estopped from any attempt to appropriate such streets or public grounds to any other use than that designated in the plat. (Comm’rs of Franklin Co. v. Lathrop, 9 Kas. 453.) The same doctrine applies in a case like the present. By this map or plat of Wyandotte city, the lot in question, with others, was represented as church grounds. Persons would buy on the faith of such representations; the fact would be an inducement to parties to locate there; might very naturally determine the locality of the lots they buy. And it would be strange indeed if after parties, on the faith . of such a representation, had purchased lots facing on these supposed church grounds and improved them with reference thereto, the original owner could ignore everything and convert these grounds into any private purpose he saw fit. A party buys lots facing on what is represented to him as church grounds, and builds himself a home, and then sees the original owner from whom he bought use the church grounds for a livery stable, a saloon, a gambling house, or a brothel. Surely, here is a very open door for the entrance of the doctrine of-estoppel. We think therefore that by the making and filing of this plat, with the language of dedication appearing in it, it must be held that there was a binding dedication of this tract to church purposes; and secondly, that [641] the fact that the plaintiff was not at the time of the dedication an incorporated society, will not of itself defeat its right to the tract.
Upon these questions we have little doubt; but the question now arises, was the plaintiff the party entitled to the benefits of such dedication ? In most of the cases which we have cited there was no question as to the party intended. The specific party was named, as in the case from 2 Peters, where the ground was marked “for the Lutheran church,” and there being but one Lutheran church in the place, the identity was beyond question. But this dedication or appropriation was simply to church purposes; the plat was marked “church lot.” Now what right has the plaintiff to say it was the party intended by the town company as the recipient of the benefits of this dedication? That a party may be identified by parol testimony in many cases will not be questioned, but can such testimony be resorted to in a case like the present? If it can, does the testimony show that the plaintiff was the party absolutely intended, or does it indicate that there was simply a conditional intention on the part of the- town company to give this tract to the plaintiff or some other church organization upon its placing a certain amount of improvements thereon? The records of the town company show that on May 2, 1857, it was resolved that “a church lot be appropriated to the Presbyterian church, New School, on application of Mr. Goodrich.” . The other tracts marked “church lots” had already been granted to other churches by prior resolutions. Now as the other church lots were already appropriated to other church organizations, and as here was a resolution appropriating a church lot to the Presbyterian church, it is contended that there is a designation of the plaintiff as the intended recipient of the tract in controversy; that the phrase “church lot” is not the same as “a lot for church purposes,” but refers specifically to one of the tracts marked on the plat as “church lots.” And while as to the other lots in the resolution, or some of them at least, certain conditions were imposed, none such appear in [642] this. It is a direct, unconditional appropriation of a lot to the Presbyterian church. But there is quite a volume of parol testimony of the statements and representations made by different members of the town company, tending, some of them quite strongly and others remotely, to show that there was an understanding and an intention on the part of the town company that this lot should go to the Presbyterian church. Still, as to the other lots, there were conveyances, and there is no little testimony tending to show that the town company never intended to part with control over this tract until it had received some satisfactory assurances of the erection of a building upon it. After carefully reviewing the testimony, which is quite voluminous, we have come to the conclusion that the findings of the district court must be sustained; that there was sufficient evidence to justify such findings, and that the opposing testimony is not so strong as to justify us in setting them aside. We shall not attempt in detail to notice the different items of testimony, but shall content ourselves with some general statements.
In the first place, this is not a case in which an intention to dedicate is imputed to the owner upon the strength of parol and uncertain testimony. The dedication, the setting apart of this ground for church purposes is positively and conclusively proved, and this not merely by the writing “church lots” on the face of the plat, by the dedicatory words thereon, but also by an entry of a resolution on the records of the town company of February 21, 1857, to this effect: “Also, a lot one hundred and fifty feet square on the northeast, southeast, and southwest corners of Huron place, be and the same are hereby appropriated as church lots.”
That an intention to dedicate may be established by parol testimony, cannot be doubted. In 2 Dillon on Municipal Corporations, (3d ed.,) §636, the author says:
“But the intention may also be established by parol evidence of acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes. To deprive the proprietor of his land, the intent to dedicate should clearly or satisfactorily appear.”
[643] See also the cases cited in the note, and also Cemetery Association v. Meninger, 14 Kas. 312. Now if parol evidence of acts and declarations of the owner is sufficient to establish an intent to dedicate, in other words, to deprive the owner of the use of the property dedicated, surely when the intent to dedicate is conclusively established by record testimony, parol evidence of a less clear and satisfactory nature may be sufficient to indicate the beneficiary. The original owner is not wronged, for his intent to part with the land is a fact proved beyond dispute, and if the question be, which of two parties is intended as the beneficiary, it must turn upon the mere preponderance of testimony.
Again, the appropriation of a lot to the use of the Presbyterian church also appears affirmatively and positively by record testimony. It is true such record does not name this lot as the one appropriated, but the record makes a present appropriation of a lot and an appropriation absolute and without condition, and this within a very short time after the general appropriation heretofore mentioned. It also appears that the other grounds formerly set apart for church lots were already appropriated to other church organizations. So by the record we come to this: A setting apart of three lots for church purposes; an appropriation of an undesignated lot to the Presbyterian church; and a prior appropriation of two out of three lots to other churches. Now when we add to this, evidence of the repeated declarations of the managing men in the town company, made during a series of years, made sometimes in response to applications for this particular lot, that it had been set apart to the Presbyterian church, it would seem a very satisfactory conclusion that the Presbyterian church was the beneficiary of this'dedication.
It is true no deed was ever made, and also true that in the final arrangements made between the town company and the church organizations to which other lots were conveyed, conditions of improvement by the grantee were imposed; and it is very probable that the town company, while it intended that the Presbyterian church should receive this lot, also in[644] tended to maintain control until or unless satisfactory assurances could be given of a speedy erection of a church building. Much of the parol testimony indicates this, and considering the then situation , of affairs, such would seem very probably the fact. Very naturally, parties laying out a new town desire its lots improved, and hold out inducements to parties to improve. So when the company laid out this town and set apart certain lots for church purposes, it was the most natural thing for it to desire to retain control until assurances were received of improvements. But still there is some tesmony, and enough we think to sustain the conclusion of the trial court, that the appropriation of this lot to the Presbyterian church was absolute and without conditions. Some of the leading members of the town company were Presbyterians, and very naturally would desire to help their church.
Again, the resolution of appropriation was absolute and unconditional, and this resolution was passed within a fortnight after one appropriating a specific lot to another church upon conditions.
Again, the statements made from time to time during a series of years, were many of them to the effect that the lot had been appropriated to the Presbyterian church, not that it would be or even -had been conditionally appropriated. Further, it. appears that during these early years efforts were made by the Presbyterians to build a church. A subscription paper was circulated, subscriptions taken and plans discussed with reference to a building on this lot, and having in view the peculiar slope of the ground; the enterprise'being finally abandoned through lack of funds and the coming on of the war. It must also be noticed that this tract was never listed for taxation, the authorities thus impliedly recognizing the validity of its dedication to church uses.
.One other fact should also be noticed, which is, that in these early times land was of little value, and that the care, particularity, and precision which to-day obtain in reference to its disposition, must not be expected or looked for in transactions concerning it. Values were only prospective and con[645] ditional; rules of conveyance were often disregarded, and real estate disposed of with as little formality as personal property. So that in an equitable action to-day, it is obviously simple justice to place great reliance upon the acts, conduct, and declarations of parties done and made at or about the time in respect to the titles or transfers of real estate.
Placing all these things together, we do not think that we should be justified' in disturbing the decree of the district court, and its judgment must therefore be affirmed.
All the Justices concurring.