Kelley v. Phillips

118 A. 230, 13 Del. Ch. 261, 1922 Del. Ch. LEXIS 42

• Court: Court of Chancery of Delaware
• Decided: July 21, 1922
• Status: Published

Opinion

The Chancellor.

The complainant in his brief makes the following propositions:

“Where a person makes a deed and in the deed sells and conveys a lot bordering upon a street or thoroughfare, whether said street be opened or not, and even though it merely be laid out on the map or plan of the city, he thereby

“(a) Covenants with the grantee that there is such a street, and that the grantee may and shall, as a right, use the same as such, and the grantor is, forever estopped from denying there is such a street, or from making any use of the same inconsistent with the enjoyment, easment, and right of way in, to and over the same by the grantee, his heirs and assigns.

“(b) Thé grantor by selling a lot as aforesaid, and by reference in his deed to said street as laid out upon the city map and plan, even though unopened at the time, dedicates the same to the public, and

“(c) The grantor by selling a lot as aforesaid, and by reference in his deed to a street laid down upon a map, plat,, or plan made by himself, even though said street be unopened, dedicates the said street to the public.”

At the argument it was conceded that the point designated (c) is not applicable, there being no evidence on which to predicate it. That being so, the propositions designated (a) and (b) are the only ones calling for consideration. I shall candider them in the inverse order of their statement.

First as to (b). I have examined with care the numerous cases cited by the complainant in support of this proposition, and after a mature consideration I find no occasion to refer to them in extenso, nor to discuss their rulings. This is so for the reason that if it be assumed that the conveyance of land described as bordering upon an unopened street as laid out on a city map, may be said to consitutue a dedication of the street to the public it is well established in Delaware that such dedication is not complete until the public has accepted the same either through the action of the duly constituted authorities, or by public user. Fulton v. Dover, 8 Houst. 78, 6 Atl. 633, 12 Atl. 394, 31 Atl. 974; Attorney General v. Chalfant, 12 Del. Ch. 214, 110 Atl. 663, affirmed 12 Del. Ch. 389, 113 Atl. 674.

The evidence establishes very clearly that the public has never made use of Bayard avenue from Lancaster avenue to Third street. There has, therefore, been no acceptance of the supposed dedication by public user of the street.

Has there been an acceptance by action of the public authorities of the City of Wilmington? The complainant contends that there.has been such acceptance. There is no showing of such acceptance on the part of the city by deed to the city, nor is there any claim of such acceptance through condemnation proceedings instituted by the city. The complainant, however, contends that the city did several things which in law are indicative of acceptance of the alleged dedication.

The acts of the city which are emphasized as thus indicating an acceptance are the plotting of the street on the city maps, the defining of the width of the street and of grade and curb lines, the laying of a water main connection running three feet and six inches from the northerly building line of Lancaster avenue up into the middle of the bed of Bayard avenue, the placing of a stone in obedience to.law at a point which would be the center, of the intersection of Lancaster avenue and Bayard avenue when opened, the cutting down by the city of two treés standing in the sidewalk of Lancaster avenue in front of the bed of Bayard avenue, and the laying of the circular curbs referred to in the statement of facts preceding this opinion.

The first plotting of Bayard avenue on the city map was in 1874. The conveyances by Joseph Pyle to Connell, which refer to Bayard avenue as laid down on the city map, were in 1883 and 1884. There could not by any possibility have been an acceptance by the city at' that time, for the reason that at that time the city limits did not embrace the locus in quo. After the city limits were extended, however, other maps of the city showed Bayard avenue. But the testimony is very clear to the effect that wherever Bayard avenue appears on the city maps it always is designated as an unopened street between Lancaster avenue and Third street, and that all that the maps mean to represent is that when the city takes over the street the lines will run as indicated. As to Bayard avenue nothing is gathered from the maps of the city beyond the fact that the city has indicated a prospective street which, when the public needs require, will be taken and opened by the city. The maps, therefore, are only prognostications of the future. They indicate no present intent to take the street.

Other acts of the city with respect to Bayard avenue are of the same character. The grade and curb lines look only to the future. No grading and no curbing on that part of Bayard avenue now in question has ever been undertaken. The placing of the center stone is of no significance as indicating an acceptance of Bayard avenue as a street. The fire plug at the future corner of Lancaster and Bayard avenues, and the circular curbs, are all to be explained solely with reference to the improving of Lancaster avenue, and have no probative value as indicating an acceptance of Bayard avenue as a city street. The same is to be said with reference to the removal of the two trees standing on the sidewalk of Lancaster avenue. If the complainant can gather any support for his case from the circumstance that the city collected no taxes for the bed of Bayard avenue for a great many years, he is conversely damaged by the fact that in 1922 the city assessed the bed of the street against the defendant and now seeks to collect taxes thereon. As to the running of three feet six inches of water pipe into the bed of Bayard avenue, the reason for it is made clear by the testimony, namely, that it was only to protect the valve on the northerly building line of Lancaster avenue and has no reference whatever to the city’s attitude towards Bayard avenue as street existing in the present.

All the acts of the city with respect to Bayard avenue clearly appear from the testimony to have been done solely with respect to the acquisition of Bayard avenue as a public street at some future day, and are in no sense to be accounted for upon the theory that the city has ever intended to recognize it as a present highway.

No case has been cited, and I dare say none can be found, where such acts as are here shown have been held to constitute an acceptance by public authority of a street alleged to have been dedicated to the public.

Assuming, therefore, that there was a dedication of Bayard avenue, yet the essential element of acceptance by the public, which is necessary to complete the dedication, is not shown. This fact makes it unnecessary for me to consider whether as a matter of law the deeds made by Joseph Pyle and the deeds procured to be made by his devisees (wherein such devisees partition that portion of the Pyle land lying north of Second street), in which reference is made in the descriptions to Bayard avenue,' do evidence an intent to immediately dedicate that avenue to the public. If I were called upon to consider this question, I would, as now advised, have very serious doubt as to the correctness of the complainant’s contention under this head. As to the deeds calling for Bayard avenue north of Second street (procured to be made by the Pyle devisees partitioning the same among themselves), it is to be noted that the portion of the avenue referred to by them does not lie in the block in which the locus of the lands here involved lies. They describe land that- lies to the north, across Second street. If those deeds may be said to dedicate Bayard avenue, it might very well be that they dedicate only that portion of the avenue which extends from Second street (unopened) to Third street (opened). And as to the deeds made by Josph Pyle to Connell (quoted in the statement of facts) it might with some force be contended that the language employed, if it indicates a dedication, yet indicates an intent to dedicate only at some future time — a dedication operative only when the city shall choose to accept and open the street. I see no reason why an owner may not in dedicating his land to the public for a street, do so in a way that will enable him to retain its exclusive possession until public authority shall duly open it.

In the case of In re Van Alst Ave., 143 App. Div. 564, 128 N. Y. Supp. 371, such seems to have been the character of.the dedication which the court held it was the intention of the grantor in the deed there involved to make. The court in that case says:

. "Both by the construction placed upon the deed by the parties and by • its language there was no present use to be made of Van Alst avenue.”

And so in this case, from the language employed in the deed of Joseph Pyle to Connell (January 19, 1884), it might be urged with much force that the peculiar language employed speaks only with reference to the future and does not intend a present dedication for immediate public enjoyment unless the city should immediately open the street.. Of course, the deed from Pyle’s executors dated April 14, 1896, might, on the other hand, have some effect towards rebutting this contention.

But, in the view I take of this case, I am not called upon to consider these questions, holding as I do, that if there was a dedication, the essential element of acceptance by the city is lacking — • essential, I mean before the public can claim the street, the same never having been actually used as such.

Second, as to (a). If the contention made under this head be granted full acceptance, consideration of the facts will reveal that it can have no application here. An examination of .all the cases cited by the complainant will disclose that where a private right, arising out of an implied covenant, is relied upon, the party relying on such right is either himself the grantee in the deed on which the implied covenant is based, or is the successor in title of such grantee, and the grantor in such deed is the owner of the land over which the easement is claimed. Such is not the case now before me. The complainant who seeks to raise such an implied covenant derives his title from George P. Jones and Pusey Jones, who conveyed the same to him June 14, 1909. It is true that these grantors in their deed to the complainant described the premises thereby conveyed as bounded on the east by Bayard avenue. But these grantors did not own the bed of Bayard avenue. At least, if they did, the evidence fails to disclose the fact. On what principle, therefore, can it be held that the Jones deed to the complainant may be said to raise an implied covenant as against the owner, that the complainant shall have the right of passage over the bed of Bayard avenue? If a bill had been filed by the defendant, seeking to set up a right of private passage over the bed of Bayard avenue as against the successsors of Joseph Pyle (before the defendant acquired title thereto), then the principle of law urged under the present head, if sound, would be applicable. For in such case the alleged private servitude would be traceable to the owner who had the right to impose it, and would be asserted by the covenantee, or his successor, who would have the right to claim it. But the complainant is in no such position. ■ He is a stranger to any implied covenant that might exist in favor of the defendant, and he shows no implied covenant made by an owner of the street bed in favor of himself, or any of his predecessors. Nor does he show any privity of contract between himself and the defendant, or between any of his predecessors in title and any of the predecessors in title of the defendant.

The complaint has put in evidence as exhibits several deeds made or accepted by the devisees of Joseph Pyle conveying lots north of Second street, all of which lots are bounded with reference to Bayard avenue. These deeds, however, run to parties other than the complainant, and if they can have any effect as raising an implied covenant that there shall be a private right of way over Bayard avenue at any point, such covenant cannot avail the complainant, a stranger thereto.

The foregoing considerations adversely dispose of the contention that there is an implied covenant in favor of the complainant that he shall have a right of way over the bed of Bayard avenue.

■ The result of the foregoing is, that Bayard avenue from Lancaster avenue to Second street is not now a public street; that the complainant as a member of the public has no right to the enjoyment of the same as a street, nor has he any private right of easement over the same by virtue of any implied' covenant incident to his title.

A decree will therefore be entered dismissing the bill, costs to be paid by the complainant. ■