The opinion of the court was delivered by
Nicholls, O. J.
The first question which presents itself is as to the character of the alley. The city contends it is a public alley, the plaintiffs that it is merely a private way.
At the time of the sales, in 1860, the square in which the lots sold were situated was surrounded on its four sides by public streets, [192]*192with gutters running along the same, as part of the general drainage of the city.
The object of the'State, as declared in the Act No. 270, was not to dedicate any portion of the property to the public, but to sell the same. No authority was conferred upon the Governor other than to sell, and the General Assembly attempted to lay no restriction upon the executive as to the size of the lots to be sold, or their form. The Governor, had he thought proper, could, by making a subdivision other than be did, widening some of the lots, lengthenin : others, and striking out entirely some of the lots as they exist, have done away with the alley without possible complaint.from any quarter.
There was nothing in the situation of the properties calling for any action on behalf of the public; the general drainage and rights of way had already been provided for, as we have said. The public was not a party to the acts of sale, either expressly or by implication. There was nothing in the acts of sale evidencing any intention to create a stipulation in favor of the public. We are not obliged to look for the particular reason which induced the Governor to lay out the lots in the manner he did, to leave open this alley, and to make it common to the owners of all the lots abutting upon it, for' Art. 2013, C. C., says: that “the real obligation, created by condition, annexed to the alienation of real property, is susceptible of all the modifications that the will of the parties can suggest, except such as are forbidden by law;” but there are several reasons which would at once suggest themselves as being those which gave rise to the sales as made — reasons entirely disconnected from public considerations and confined to the private interests of the parties.
We are not authorized to broaden the scope of contracts beyond their terms, and make them carry with them effects not contemplated by the parties thereto. There is no reason why the clauses of the various acts of sale made by the Governor in 1850 should not be restricted to the persons immediately concerned in the purchases then made.
We are of opinion, from the language used in the deeds and their evident purpose, that only private rights inter partes were intended to be created and recognized. The vendor did not, in terms, convey the property of the alley to his different vendees, but for all practical purposes they had qualified property rights in it (Heirs of Delogny vs. Mercer, 43 An. 212), but rights in which no one other [193]*193than themselves were concerned. We kno.w of no reasons why. immediately after the sales here made, these parties could not have all met together, and by unanimous consent and arrangements entirely done away with the alley, nor any reason why, by common consent, they could not have closed the entrance to and exit from the alley by gates. If they did not do the latter, it was, doubtless, because of Che inconveniences attendant upon opening and shutting them.
In Stevens vs. Nichols (Mass.) 29 N. E. 1151, the court said: “ The defendants merely opened a private way into a public street, and we fail to see that they thereby invited the public to use it even though it were paved. They had a right to pave it for their own use, o" for the use of their customers (citing a uumber of authorities) . They were not obliged to put up a sign, notifying travelers, or the public, that the passage-way was not a public street.”
In Lake Shore & M. S. Ry. Co. vs. City of Cleveland (Com. Pl.), 1 Ohio, N. P. 1, it was said: “Where, in partition proceedings, a right of way to owners of the land allotted along the streets is marked on the maps attached, the right of way is limited to the owners, and did not constitute a dedication to the public, though the public have used, and city ordinances have been passed in reference to them, and the streets have been described in conveyances of the land recorded for years.”
In Child vs. Chappell, 9 N. Y. 246, Morse, J., said: “Where an owner of land lays it out in lots and streets upon a map, by which he sells and conveys lots so laid out, as between him and the purchasers of such lots the spaces so laid down upon the map are dedicated to public use; this, we understand to be the law, and in conformity to principles of natural justice. The mere act of selling by such a map binds the grantor to permit the land so laid down as streets, to be used as such. As between the parties, their heirs and assigns, it fixes the servitude of a public way upon the land thus laid down as streets. It is, perhaps, unnecessary to consider now whether such a grant between the grantor and the public would be a dedication. * * * The transaction, however, in the first instance, is strictly a private one, as it relates to the land. The right to use and have used by the public, the streets laid down upon the map, has become an appurtenance to the parcel of land granted, and the same right belongs to each of the parcels granted, upon the same terms. [194]*194As between the original owner of the land and the several grantees of parcels thereof, these rights are fixed, but until the public has, in some way, become a party to the transaction, the whole arrangement is subject to be rescinded by the '.oint act of the original owner, and of all those who own and have the right to represent the land sold. The principle established is that an owner may make any lawful disposition of it which he deems most beneficial. He may found a city or village, or an agricultural or manufacturing community at his own free will, so far as the appropriation of his land may go to effect such purposes. He may adopt just such measures concerning his land as may, to his judgment; seem expedient. It would nowhere be doubted that a man owning a hundred acres of land through which there ran no highway would be at liberty to enclose it with a wall and to erect a fenced town. He might lay out streets throughout the entire parcel, and collect a phalanx of socialists having all the streets common and as among themselves public, and as to the world, besides, exclusive and private. In other words there might be impressed upon this mass of private property, private contract, rights in the strictest sense of the word analogous to the ordinary public rights of highway, and yet those rights confined to the owners and representatives of the land, forming the subject of the compact and liable to be ended by the mutual consent of all who had an interest in the subject.”
In Dill vs. Board, 20 Atlantic Rep. 743, the court, referring to a sale of lots by a plan or map on which a street is marked, said: “ By such purchases the grantees are regarded as purchasers by implied covenant of the right to the use of the street as a means of passage to and from the premises appurtenant to the premises granted, and this private right of way in the grantees is wholly distinct and independent of the right of passage to be acquired by the public.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Nicholls, O. J.
The first question which presents itself is as to the character of the alley. The city contends it is a public alley, the plaintiffs that it is merely a private way.
At the time of the sales, in 1860, the square in which the lots sold were situated was surrounded on its four sides by public streets, [192]*192with gutters running along the same, as part of the general drainage of the city.
The object of the'State, as declared in the Act No. 270, was not to dedicate any portion of the property to the public, but to sell the same. No authority was conferred upon the Governor other than to sell, and the General Assembly attempted to lay no restriction upon the executive as to the size of the lots to be sold, or their form. The Governor, had he thought proper, could, by making a subdivision other than be did, widening some of the lots, lengthenin : others, and striking out entirely some of the lots as they exist, have done away with the alley without possible complaint.from any quarter.
There was nothing in the situation of the properties calling for any action on behalf of the public; the general drainage and rights of way had already been provided for, as we have said. The public was not a party to the acts of sale, either expressly or by implication. There was nothing in the acts of sale evidencing any intention to create a stipulation in favor of the public. We are not obliged to look for the particular reason which induced the Governor to lay out the lots in the manner he did, to leave open this alley, and to make it common to the owners of all the lots abutting upon it, for' Art. 2013, C. C., says: that “the real obligation, created by condition, annexed to the alienation of real property, is susceptible of all the modifications that the will of the parties can suggest, except such as are forbidden by law;” but there are several reasons which would at once suggest themselves as being those which gave rise to the sales as made — reasons entirely disconnected from public considerations and confined to the private interests of the parties.
We are not authorized to broaden the scope of contracts beyond their terms, and make them carry with them effects not contemplated by the parties thereto. There is no reason why the clauses of the various acts of sale made by the Governor in 1850 should not be restricted to the persons immediately concerned in the purchases then made.
We are of opinion, from the language used in the deeds and their evident purpose, that only private rights inter partes were intended to be created and recognized. The vendor did not, in terms, convey the property of the alley to his different vendees, but for all practical purposes they had qualified property rights in it (Heirs of Delogny vs. Mercer, 43 An. 212), but rights in which no one other [193]*193than themselves were concerned. We kno.w of no reasons why. immediately after the sales here made, these parties could not have all met together, and by unanimous consent and arrangements entirely done away with the alley, nor any reason why, by common consent, they could not have closed the entrance to and exit from the alley by gates. If they did not do the latter, it was, doubtless, because of Che inconveniences attendant upon opening and shutting them.
In Stevens vs. Nichols (Mass.) 29 N. E. 1151, the court said: “ The defendants merely opened a private way into a public street, and we fail to see that they thereby invited the public to use it even though it were paved. They had a right to pave it for their own use, o" for the use of their customers (citing a uumber of authorities) . They were not obliged to put up a sign, notifying travelers, or the public, that the passage-way was not a public street.”
In Lake Shore & M. S. Ry. Co. vs. City of Cleveland (Com. Pl.), 1 Ohio, N. P. 1, it was said: “Where, in partition proceedings, a right of way to owners of the land allotted along the streets is marked on the maps attached, the right of way is limited to the owners, and did not constitute a dedication to the public, though the public have used, and city ordinances have been passed in reference to them, and the streets have been described in conveyances of the land recorded for years.”
In Child vs. Chappell, 9 N. Y. 246, Morse, J., said: “Where an owner of land lays it out in lots and streets upon a map, by which he sells and conveys lots so laid out, as between him and the purchasers of such lots the spaces so laid down upon the map are dedicated to public use; this, we understand to be the law, and in conformity to principles of natural justice. The mere act of selling by such a map binds the grantor to permit the land so laid down as streets, to be used as such. As between the parties, their heirs and assigns, it fixes the servitude of a public way upon the land thus laid down as streets. It is, perhaps, unnecessary to consider now whether such a grant between the grantor and the public would be a dedication. * * * The transaction, however, in the first instance, is strictly a private one, as it relates to the land. The right to use and have used by the public, the streets laid down upon the map, has become an appurtenance to the parcel of land granted, and the same right belongs to each of the parcels granted, upon the same terms. [194]*194As between the original owner of the land and the several grantees of parcels thereof, these rights are fixed, but until the public has, in some way, become a party to the transaction, the whole arrangement is subject to be rescinded by the '.oint act of the original owner, and of all those who own and have the right to represent the land sold. The principle established is that an owner may make any lawful disposition of it which he deems most beneficial. He may found a city or village, or an agricultural or manufacturing community at his own free will, so far as the appropriation of his land may go to effect such purposes. He may adopt just such measures concerning his land as may, to his judgment; seem expedient. It would nowhere be doubted that a man owning a hundred acres of land through which there ran no highway would be at liberty to enclose it with a wall and to erect a fenced town. He might lay out streets throughout the entire parcel, and collect a phalanx of socialists having all the streets common and as among themselves public, and as to the world, besides, exclusive and private. In other words there might be impressed upon this mass of private property, private contract, rights in the strictest sense of the word analogous to the ordinary public rights of highway, and yet those rights confined to the owners and representatives of the land, forming the subject of the compact and liable to be ended by the mutual consent of all who had an interest in the subject.”
In Dill vs. Board, 20 Atlantic Rep. 743, the court, referring to a sale of lots by a plan or map on which a street is marked, said: “ By such purchases the grantees are regarded as purchasers by implied covenant of the right to the use of the street as a means of passage to and from the premises appurtenant to the premises granted, and this private right of way in the grantees is wholly distinct and independent of the right of passage to be acquired by the public. The right to have the alley thus described forever preserved is a private right annexed as an appurtenance to the ownership of the land conveyed, entirely distinct from and in addition to the right of the owner as a citizen at large to use the street after it should become a public street by acceptance of the public authorities * * * The right was granted in connection with the conveyance of the lot, and for the convenience of the owner thereof, and the grant was to him, his heirs and assigns forever.”
We think that in the present case there was no intention to dedi[195]*195cate the alley to the public. The evidence showed that no one enters it unless he is obliged to, and'that its use is confined to those who have business with the owners. “A plain and positive intention to dedicate is an essential element of a dedication, and that intention must be shown by language or acts so clear as to exclude any other reasonable hypothesis, or, at least, to clearly convince the judicial mind ” (C. C. 753; City of Shreveport vs. Drouin, 41 An. 867; Railroad Co. vs. Carrollton, 3 An. 285; Torres vs. Falgoust, 37 An. 497) The city has never attempted to light the alley, has never placed a policeman upon it, or done any public municipal act whatever in reference to it, with the exception of the work now enjoined from being done. We do not think that the city occupied such a position relative to the alley, that had a personal injury to any one taken place therein in consequence of its bad.condition and want of repairs, the corporation could have been made responsible for the resulting damages. The party injured, if entitled to damages, would have had to look to the parties charged with the duty of keeping it in repair. Stevens vs. Nichols, 29 N. E. 1150 (Mass).
The alley in question does not border upon a public street (State vs. Lochte, 45 An. 1409; Holmes vs. Drew, 151 Mass. 578), but is in its entirety private.
The only claim urged by the city in support of its claim that the alley involved in this case is a public alley, not a private way, is that upon several occasions sanitary inspectors (officials under the Board of Health) have gone into the alley and cleaned it out with the assistance of the prisoners in the city jail. The officials in question acted upon their own responsibility, with orders from no official quarter, and though there might be no objection to be taken that in the interest of public health they should have done so on special occasions, instead of forcing (as they could have forced) the parties in interest to have dono so, such an act when done would not carry with it the far-reaching consequences claimed.
The city was not bound itself, as a part of its official duty, either to clean this alley or repair it. It or the Board of Health could have forced the parties in interest to have kept it in a cleanly condition, for the powers of the proper sanitary officials extend for some purposes to and within the private enclosed premises of owners, and also to that portion of the property which the owner thinks proper to leave outside of his enclosure. The Council could by ordinance [196]*196force each owner to keep the portion of the alley directly in the rear or in front of his premises clean and' to remove therefrom dirt or filth upon it. See Commonwealth vs. Cutter, 29 N. E. 114 (Mass.)
The alley being held to be a private alley, in its entirety, and not bordering on any public street (Holmes vs. Drew, above cited), the next question is whether the council had the right through a contract made by itself to force the owners of the property abutting on it, at their own expense, to pave it, either acting on its own motion, or upon the application of one or more of those owners. The right to do so .is based upon Sec. 37 of Act No. 20 of 1882, which declares that the “ council may, in its discretion, provide tor the paving or ban-quetting of any street or portion thereof at the expense of the whole city, and may thereupon force and impose and collect of the front proprietors of lots fronting on such streets a specific local assessment in proportion to the frontage, not exceeding the increase in the value of the property, occasioned by the local improvement, and such local assessment shall have a first privilege superior to vendor’s privilege and all other privileges and mortgages.”
We do not think this alley falls under the operation of the statute as being a “street or,a portion thereof.” Face vs. The City of Ionia (Mich.), 51 N. W. 186. It is not a public place, but in its entirety a mere private way, appurtenant to the lots abutting on the alley. Buisson vs. McNeil, 9 An. 445; Rozier vs. Maginnis, 12 An. 109; Gottschalk vs. DeSantos, 12 An. 473; Cahill vs. Connelly, 14 An. 280; Thompson vs. Meyers, 34 An. 618.
The city claims that the plaintifis, DeGrilleau, however, are es-topped and concluded by the action of their agents, Messrs. A. & 0. Denis, in signing the application for the paving of the alley with vitrified brick, but it is obvious that even were those parties concluded their-action would bind neither the plaintiff, Mrs. Adele Beer, or the inter-venor, Miss Egan. Mrs. DeGrilleau and the Messrs. Grailhe could, by nothing they did, estop those abutting owners, and their opposition, when made, would, by reason of the fact that it would have as its effect to undo in its entirety, as being an indivisible act, all that had been done in the premises, indirectly of necessity enure to the benfit of all the owners.
The opposition made by the plaintiff and the intervenor, we may say, was not leveled so much against the paving of the alley as against the acts done by the city officials in connection with the paving.
[197]*197Plaintiffs maintain that even were the city authorized to act as the forced legal agent of all the owners of. property abutting upon the alley in bring.ng about a paving thereof, they were without authority in doing so, to disturb and break up of its own motion the private rights of the abutting owners, inter se as to drainage and other servitudes; that these rights are vested rights, and the Common Council, under the guise of police administration, is powerless to impair them. They show that these private rights have, as between the parties, been fixed and settled for years; that none of the parties have asked for any change in respect to them; that the city does not predicate its action upon any right of grading the property or of forcing the owners to do so, but that the City Engineer, under an application to have an alley paved, has undertaken to alter the grade of the property, and in altering it increase, to the prejudice of the properties on the lower side of the alley, in favor of those on the upper side, the servitudes upon the same. That he has also greatly interfered with the alley, considered as a right of way, making the alley in its changed condition inconvenient and liable to lead to accidents, and impairing the value of their properties.
Without entering into details of testimony, we think the complaints of plaintiff and intervenor on this branch of the case well founded.
We think the City Engineer iu proceeding to have the alley paved was disturbing and breaking up, without authority and in an unjustifiable manner, the private rights of the owners, whose lots fronted on Canal street and abutted in the rear upon the alley. These rights are in the nature of property, and can not be thus taken from one person and transferred over to another. The alley is not a public alley, and neither the general drainage of the city nor public rights are involved in this litigation. The amendment asked for by appellants can not be granted. Frawley’s rights would be affected, and he is not an appellant. The legal consequences of our decree will be sufficient protection to appellees as against the city.
The judgment appealed from is hereby affirmed.