Fulton v. Town of Dover

6 Del. Ch. 1

• Court: Court of Chancery of Delaware
• Decided: March 15, 1886
• Status: Published

Opinion

The Chancellor.

In 1879, J. Alexander Fulton, the-complainant, being the owner of a tract of land adjoining-the town of Dover and immediately north and west, thereof, caused the same to be surveyed as an addition, thereto. He caused the map of the same to be made and. recorded in the recorder’s office of Kent County, in which streets and alleys running north and south, east, and west, are described and located. Of these streets, Division, Fulton, Cecil, Mary, and Clara are described as-extending from State street to the Delaware Bailroad and. beyond, and running east and west. Bradford street, Governor avenue, Hew, Queen, Kirkwood and West, streets are described on the map as running north and south. The streets run at right angles, and are all described as sixty feet wide.

Upon the map, recorded as aforesaid, there is indorsed a note in the following words: “ All the streets are= sixty feet wide. All the alleys twelve feet, except the-one between State and Bradford streets, which is fifteen feet wide. The streets running east and west run at right angles with State street. Hew and Queen streets, terminate in Mary street, on the north. Kirkwood and West in Cecil street on the north. All the streets west, of the Delaware Bailroad terminate in Mary street, on the north. The lines appearing on the plot north of Mary street and west of the railroad were never marked on the ground, and were merely experimental and prospective.”

Mr. Fulton, according to this plan delineated on the-map, sold lots, amounting somewhere to near 100 in number, to different persons, many of which have been built upon as places of residence or business, chiefly the former. Fulton’s addition has been included within the limits of the town of Dover; the deeds from him to-the purchasers of lots all have referred to the recorded plot or map.

By Act of the General Assembly entitled, “ An Act to-Incorporate the Town of Dover,” (Act of February 27,. 1879, 16 Del. Laws, p. 140), it is provided in the seventh section thereof that “ the town council shall have power,, upon the application of ten or more citizens of the town,, by petition for the purpose, to locate, lay out, and open or widen any new street or streets, lane or lanes, or alley or alleys, or widen any street, lane, or alley, heretofore-laid out or hereafter to be laid out in said town, or reopen any old street or streets, lane or lanes, or alley or alleys-now closed, or which may hereafter be closed, which ten or more citizens may desire to be located, laid out, and opened, or widened, or reopened, allowing to the persons, respectively, through or over whose lands such street or streets, lane or lanes, or alley or alleys may pass, such compensation therefor as they shall deem just and reasonable under all circumstances; which compensation, if any be allowed, shall be paid by the treasurer of the town out of the moneys of said town, upon warrants drawn upon him by order of the council aforesaid.”

By the eighth section of said Act it is, among other-tilings, provided that “ whenever the town council shall have determined to locate and lay out or widen any street, lane, or alley, and shall have fixed the compensation therefor, it shall be their duty, immediately after the survey and location of the said street, lane, or alley, to-notify, in writing, the owner or owners of the real estate,, through or over which such street, lane, or alley may nin, of their determination to open and widen the same, and to furnish a general description of the location thereof, and also the amount of the damages or compensation allowed to each; and if such owner be not resident within the said town, to notify the holder or tenant of said real estate; but if there be no holder or tenant resident in said town, the said notice may be affixed to any part of the premises.”

It seems that the petition of Thomas E. Taylor and twenty-six other citizens of the town of Dover was presented to the town council on the 15th day of December, 1884, requesting the said town council to locate, lay out, ■and open a new street through the land of said J. Alexander Fulton, from where Queen street now terminates in Cecil street, making the same a continuation of said Queen street to Clara street; and that said petition was received, and referred to the committee on streets.

FTo public action was taken in respect to the opening •of Queen street until the 7th day of December, 1885, when the report of the street committee, in relation to the opening of said street, was taken up for' consideration, and the following resolves were adopted:

“ Hesoboed, that Queen street be opened and extended ■from Cecil street to Clara street, of the width of 60 feet, taking into said street 60 feet front on Cecil street (the said front being on the direct line of Queen street as now opened), and running from thence, the same width, to Clara street, to a point where the road, surveyed and laid out under chapter 544 of volume 17 of the Laws of Delaware, ends on said Clara street (the centre of said •Queen street as extended being the centre of the said road at its termination on said street), of the lands of J. Alexander Fulton; and that said J. Alexander Fulton be allowed the sum of six cents as damages; and that said sum be paid to said Fulton. . “Resolved, that the committee on streets be instructed to have the said street, as extended, surveyed and laid •out as one of the public streets of the town; and that the •same, when so laid out, is hereby declared to be a public street of the town of Dover, of the width of 60 feet.” The report of the street committee was made to the town council on the 3d day of February, 1885; and no action was taken by the council in respect to it until said 7th day of December, 1885. No notice of the condemnation proceedings by the town council was given to Fulton until the 26th day of March, 1886, when such notice was given in the following words:

Dover, Del., March 25, 1886.

Mr. J. Alexander Fulton :

You are hereby notified that the town council of the town of Dover, at its regular meeting On the 7th day of December, A. D. 1885, did resolve to open Queen street from Cecil street to Clara street, of the width of 60 feet; and that they have condemned 60 feet front and 1,260 feet deep of land belonging to you; and that the said council has allowed to you, as damages, the sum of six cents.

A. S. Kirk, Cleric of Council.

From these proceedings of the council, Fulton appealed ; but, from not having done so in time or from other cause, withdrew it, and has filed his bill in this court praying an injunction against the corporation from further action, under their proceedings, in the taking of his land and the opening of Queen street.

Upon the above state of facts, I am of the opinion, first, that there was no necessity of any condemnation proceedings, by the town council, of that portion of Queen street lying between Cecil and Mary streets. It had already been dedicated to public use by Mr. Fulton, by the survey and map hereinbefore referred to, and by the sale of lots to the different purchasers from him, and conveyance of said lots by him to the purchasers, in. which the map, which he caused to be made and recorded with the streets thereon particularly described, is distinctly referred to.

This map, as remarked by the court in the case of Rowan v. Portland, 8 B. Mon. 235 (a case very similar-in every respect to this), is to be assumed as the representation of the town in which the lots were sold; and not as a merely verbal, but as a written and recorded,, representation of its localities and divisions, its streets- and alleys, so far as they are indicated by it. In all. these respects it is to be regarded as having entered into- and formed a part of every contract for the sale of a lot-in the town, by its number or position in the plan, and as having been adopted and confirmed by every conveyance of a lot described by similar reference. It is, in fact, identified with the town itself; and every reference-to or recognition of the town is a recognition of the plan, by which its various divisions, and the localities and uses-of its different parts, are identified. Every purchaser of a lot, according to the plan, acquired an interest in it not only as evidence of the position of his purchase, hut-as evidence also of the several advantages and privileges-pertaining to the town and the lots, as indicated by the plan, and especially as evidence of the localities, divisions, and uses of its various parts as therein presented. In purchasing and paying for his lot, he purchased and paid for, as appurtenant to it, every advantage, privilege, and easement which the plan represents as belonging to it as0a part, or to its owner as a citizen, of the town; and the conveyance of each lot with a reference to the map, or merely as a part of the town, was a conveyance of all these appurtenances as ascertained by the map. These •conveyances, in connection with the map to which they refer, operate as a conclusive grant or covenant, securing to the purchasers and to the town all advantages, privileges, and easements to the lots of the said town.

The notoriety—actual as well as legal—of the acts involved in the making of Fulton’s addition to Dover; the laying out of the same upon the land; the representation of it upon a map, open to public inspection, and recorded in the office of the recorder of deeds; the sale .and conveyance of lots according to that plan; the record of the deed referring to the plan; the subsequent • enclosure and improvement of some of them for business •or residence; and the existence of the addition to the town of Dover upon the land,—must be considered as giving to the world such notice of the plan to which all these acts and facts have reference, as to preclude the possibility of afterwards acquiring from the original proprietor, or of asserting, or of claiming, with a good conscience, any right or interest inconsistent with those which, according to the plan of the addition thus made by him to the town, are appurtenant to the lots; and are therefore granted to or held for the lot owners or citizens . and the local or general public.

The right acquired by a purchase of a lot in this addition to Dover is not confined to the mere use of the ground purchased, but extends to the use of all the streets, . alleys, and other public rights in the town, according to their appropriate purpose.

These opinions in respect to the rights of purchasers of property on streets dedicated to public use by the owners of land over which they pass, and of the public therein, .are expressed almost in the exact words of Chief Justice Marshall, of Kentucky, in the opinion delivered by him in the case of Rowan v. Portland. And they have been .so expressed because it is difficult to improve upon the language used by him, and because they are eminently applicable to the present case.

In my opinion, the town council of Dover had the right at any time after Fulton’s addition was, by law, made a part of the town of Dover, and after Mr. Fulton so as aforesaid dedicated said streets to the use of the purchasers of lots on said streets, and to the public, to do whatever was necessary and proper for rendering'them fit for travel, without taking any steps whatever toward the condemnation of the land over which they passed, under the Act for -the incorporation of the town of Dover; and that therefore they might then, .and may now, if anything is necessary for that purpose to be done to render Queen street, from Cecil street to Mary street, available to public travel, do whatever is so necessary, without reference to said Act of incorporation.

In respect to that portion of Mr. Fulton’s land over which it is proposed to extend Queen street to Clara street, opposite the new county road, mentioned in the bill, and also in the resolution adopted by the town council, the case would be different. The land, over which Queen street is thus proposed to be extended has never been dedicated, by Mr. Fulton to the purchasers of lots from him or to the public. Condemnation proceedings would be necessary under the Act for extending said Queen street over the land between Mary street and Clara street.

The proceedings taken by the town council heretofore for that purpose were not, in my opinion, sufficient, and were not in accordance with the Act from which they derive their authority.

The eighth section of that Act, as we have seen, declares that whenever the town council shall have determined to locate and lay out or widen any street, lane, or alley, and shall affix the compensation therefor, it shall be its duty, immediately after the survey and location of the said street, lane, or alley, to notify in writing the owner or owners of the real estate through or over which such street, lane, or alley may run, of then* determination to open and widen the same, and to furnish a general description of the location thereof, and also the amount of the damages or compensation allowed to each.

Now, a survey in all cases is not at all necessary, if by a survey be meant the employment of a surveyor and the actual measurement' by him of the land to be condemned. It is indeed rarely that such a survey would be necessary. The persons authorized to make the condemnation may do so on their view of the premises. Generally in towns a very small distance and a very small space of land belonging to an individual is necessary to be condemned in opening a street.

N owhere in the Act to incorporate the town of Dover is a plot required to be made. “ To survey ” has several significations. It may mean to inspect or take a view of to view with attention; to view with a scrutinizing eye ; to examine; to examine with reference to condition,, situation, and value; to measure as land; and many others. “ Survey ” as a noun, as in the Act referred to,, may mean an attentive or particular view; examination of the land with a design to ascertain the condition, quantity, or value. It certainly does not necessarily mean a paper containing a statement of the courses, distances, and quantity of land; and it does not necessarily mean a. plot of land made by a surveyor as such. The Act would seem to contemplate that the survey and location of the street contemplated to be extended, laid out, or widened should be made before or at the time the damages were assessed, and not afterwards. And such seems to have been the view of the town council, if we are to judge from the notice which it gave to Hi*. Fulton on the 26th ■day of March, 1886; for in that notice it says: “You are "hereby notified that the town council of the town of Dover, at its regular meeting on the 7th day of December, 1885, did resolve to open Queen street from Cecil ¡street to Clara street, of the width of sixty feet, and that they have condemned sixty feet front and 1,260 feet ■deep of land belonging to you; and that the said council has allowed to you, as damages, the sum of six cents.”

It is true this is a general description of the land, and •all that the Act requires; but it is not so particular a description of it as that contained in the resolution adopted "by the council on the 7th day of December', 1885. It was not on the 25th or 26th of March, 1886, that the town council had determined to locate and lay out or extend Queen street and fix the compensation therefor, but it was on the 7th day of December, 1885, that it did these things. And the Act of Assembly under which it .acted declared that it should be its duty, immediately .after doing these things, to notify in writing Fulton, the owner of the real estate through which Queen street .should run, of its determination to open the same, and to furnish a general description of the location thereof, and the amount of damages or compensation allowed to him.

Mow, the 26tlr of March, 1886, was not immediately after the 7th day of December, 1885. And notice given ■on the former day was not the notice required to be given by the Act of Assembly. The law sedulously protects a man’s freehold. He cannot be deprived of it ■except in accordance with law. The question is not what was in fact done between the 7th day of December, 1885, and the 26th of March, 1886, but what might have been done.

A man shall not be deprived of .the free use of his freehold except in strict accordance with law.

That this is the law in respect to that portion of the land of Fulton, between Mary and Clara streets, which "the town council, in mockery of justice, proposes to take for six cents, will be apparent on a moment’s reflection.

The land is within the town limits of Dover. Between the seventh day of December, 1885,—the date of the condemnation,—and the twenty-sixth of March, 1886, Fulton, in absolute ignorance of the action of the town council, on the first-named day might have commenced, if not have completed, costly buildings and structures and other improvements on said piece of land. He might have expended money on the improvement of said piece of land, in the erection of buildings thereon in the ■period of time named, greater in amount than all his adjoining land of forty or fifty acres were intrinsically worth. And yet, if the contention of thq counsel for the town council be correct, then it would have been competent for the town council, after the expenditure of these large sums of money, and at as late a period as March, 1886, to notify Fulton in writing of its determination to open the street across his land; and that it had, in the previous month of December, generously allowed him damages or compensation to the amount of six cents for so doing.

This is not the court to seek approval of action which might be attended with such consequences.

If the survey contemplated by the Act of Assembly is not held to have been made before or at the time of the condemnation of the land, and of the awarding of six ■cents damages, then no real survey ever was in fact made. Ho plot of a survey was required by the Act to be made. It is not pretended that the outside lines, including the strip of land, were in fact run or surveyed.

All that the surveyor is alleged to have done was to ■strike a line so as to determine the middle of Queen street as proposed to be extended to Clara street, or to the new road which had been located on the opposite-side to Clara street.

If the notice required to be given was not required to-be given immediately in the sense here presented, then, the town council might, at its pleasure, have given such, notice at any time after the condemnation and before a. pretended survey, however distant.

The survey might have been postponed, in this view of the case, for years; and Fulton, in the meantime, remain in uncertainty as to what the ultimate action of the council might be.

I am therefore of opinion, for this reason, that Queen street cannot be extended from Mary street to Clara-street, under the proceedings had and taken by the town, council as set forth in the paper in this cause.

I shall therefore decree that the preliminary injunction heretofore awarded in this cause, so far as it relates to Queen street, between Cecil street and Mary street, be dissolved; and that, so far as it relates to the land between Mary street and Clara street, it be made perpetual in respect to any proceedings by the town - council heretofore taken and had to the same. And it is ordered, that the corporation pay the costs in three months.

*

See same case on appeal to Court of Errors and Appeals reported In 11 Cent. Sep. 261.