Daughters v. Board of County Commissioners

106 P. 297, 81 Kan. 548, 1910 Kan. LEXIS 391

• Court: Supreme Court of Kansas
• Decided: January 8, 1910
• Docket: No. 16,288
• Status: Published

Opinion

The opinion of the court was delivered by

Smith, J.:

The designating of the block simply as “Square” evidences an intention on the part of the owners of the land to dedicate it to a public use, but the designation does not indicate to what particular public use it was dedicated. It was simply dedicated to the use of the public. As we have seen, it does not appear from the petition that any. private rights in the lots surrounding the square had intervened, and it was decided in Comm’rs of Franklin Co. v. Lathrop, 9 Kan. 453, that “the legislature so far represents the public that its consent to the alienation of public grounds thus dedicated is sufficient, if no private rights have intervened.” (Syllabus.) In that case the block therein in question was designated by the proprietors on the plat as “Courthouse Square.” The block was also conveyed by the Ottawa Town. Company to the board of county commissioners of Franklin county. Thereafter the legislature, by chapter 85 of the Laws of 1871, authorized the board of county commissioners to sell one-half of the block, the proceeds of the sale to be devoted to^ the construction of a courthouse. Under the facts of that case, however, the court held that Lathrop had a trust interest in the property, and held the act of the legislature unconstitutional, at the same time announcing the general doctrine above quoted, which is applicable to this case. (See, also, Palmer v. City of Clinton, 52 Ill. App. 67; Requa v. The City of Rochester, 45 N. Y. 129; Depriest v. Jones, [Va. 1895] 21 S. E. 478; Taylor & als’ Case, 29 Grat. [Va.] 780.) Even if lots surrounding this square were purchased and occupied before the legislature passed the act of 1867, it can not be said that they were bought or the property improved with reference to any particular public use of the block in question, as no particular public use was designated by the plat.

The appellant especially appears to be in no position to complain. He purchased his property upon which he bases his right thirty-six years after the courthouse and jail were built, and four years after the county had ceased to use the building as a courthouse. His grantor erected the house he now owns after the building on the square had ceased to be used as a courthouse. If the grantor had commenced an action like this at the time he conveyed the property to the appellant, it seems it would have been a sufficient answer to his attempt to invoke the powers of a court of equity that he had slept upon his rights, if he had any, for thirteen years, and was guilty of laches.

Many other questions are raised, but in our view the questions discussed are sufficient to justify the ruling of the court in sustaining the demurrer. The judgment is therefore affirmed.