Schettler v. Lynch

64 P. 955, 23 Utah 305, 1901 Utah LEXIS 22

Opinion

The case having been stated as above,

Baetoi-i, J.,

delivered the opinion of the court.

The appellants insist that the court erred in finding that tbe evidence established a dedication, by the owner, and an acceptance, by the public, of the land in controversy, for the purposes of a highway.

To determine the question here presented it is, in the first instance, important to refer to the principles of law involved, and then ascertain whether, in the light of those principles, the evidence established a valid dedication. A dedication may be either express or implied. It is express when' "there is an express manifestation, on the part of the owner, of his purpose to devote the land to the particular public use, as in the case of a grant evidenced by writing. It is implied when the acts and conduct of the owner clearly manifest an intention on his part to devote the land to the public use. Whether the dedication be express or implied, an intention of the owner to appropriate the land to the public use must appear. It is always a question of intention. In neither case is any particular formality or form of words necessary. If the intention to dedicate is manifest it is sufficient. An implied dedication is founded on the doctrine of equitable estop-pel, and when land has been thus set apart as a highway for the use of the public, for their convenience and accommodation, and enjoyed as such, and private and individual rights acquired in relation to it, “The law,” as said by the Supreme Court of the United States, “considers it in the nature of an estoppel in -pais, which precludes the original owner from revoking such dedication.” City of Cincinnati v. White, 6 Pet. 431. And such an appropriation of land is not within the statute of frauds, and. may be established by parol evidence showing the acts and conduct of the owner of the land. In fact an implied dedication of land, for public use as a highway, may be established in any conceivable way by which the intent of the owner can be made apparent.

“The intent which the law means is not a secret one, but is tliat which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to' infer an intent to dedicate and they are so received and acted upon by the public, the owner can not, after acceptance by the public, recall the appropriation. Regard is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose. If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.” Elliott on Roads and Streets, pp. 92, 93.

Nor, where land has been so set apart by the owner for public use as a highway and accepted by the public, does thereafter the right of the public depend upon a ten or twenty years’ user or possession.

“The right of the public does not rest upon a grant by deed, nor under a twenty years’ possession; but upon the use of the land with the assent of the owner, for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment.” Greenleaf on Ev., sec. 662; Elliott on Roads and Streets, pp. 98, 99.

And the dedication may be inferred from long continued use by the public with the knowledge of the owner and without objection by him.

In Wilson v. Hull, 7 Utah 90, it was said:

“The intention of the owner of the land to dedicate may be inferred from bis acquiescence in its continual use as a road by tbe public. In order to constitute acquiescence in a legal sense, tbe owner must know that tbe public is using bis land as a road. There must be an act of tbe mind, a knowledge that tbe public is using tbe land as a highway, and a purpose on tbe part of the owner not to object. A knowledge of tbe use for such a purpose, without objection by word or. act, may authorize tbe inference that tbe owner consents to tbe appropriation.”

In bis Treatise on tbe Law of Highways, Mr. Angelí, in section 142, speaking on tbe subject of dedication of land to public use as a highway, says:

“No particular formality is required; it is not affected by tbe statute of frauds; it may be made either with or without writing, by an act of -the owner, such as throwing open bis land to tbe public travel, or platting it and selling lots bounded by streets designated in tbe plat, thereby indicating a clear intention to dedicate; or an acquiescence in tbe use of bis land for a highway, or bis declared assent to such use, will be sufficient; tbe dedication being proved in most, if not in'all, cases, by matter in pais, and not by deed. Tbe vital principle of dedication is tbe intention to dedicate — tbe animus dedicandi; and whenever this is unequivocally manifested, tbe dedication, so far as tbe owner of tbe soil is concerned, has been made. Time, therefore, though often a very material ingredient in tbe evidence, is not an indispensable ingredient in the act of dedication.” 9 Am. and Eng. Ency. of Law, 34, 38-41; Jones on Easements, sec. 424; Burrows v. Guest, 5 Utah 91; Whitesides v. Green, 13 Utah 341; Harding v. Jasper, 14 Cal. 643; Rowan’s Ex’rs v. Town of Portland, 8 B. Mon. 232; Morgan v. Railroad Co., 96 U. S. 116; City of Cincinnati v. White, 6 Pet. 431.

Applying these principles to tbe present case, tbe question is, does the evidence establish a dedication, by Groesbeck, of the land in dispute, to the public to be used for the purposes of a street? This, we think, must be answered in the affirmative. The testimony shows such a course of conduct and such acts, respecting the land in controversy, as' clearly manifest an intention, on the part of the owner, to appropriate it to such use. lie built a fence to inclose his land, leaving the twelve-foot strip as a part of the street, and that fence remained there during the remainder of his life and for some years afterwards. In fact, some of the posts are still standing. After the fence was built a sign.was placed on the owner’s house, on which the street was designated “Church Street.” One witness says Groesbeck himself put the sign up, but whether he or some one else placed it on the house is not material since he as owner permitted it to remain there as an index to a public street and acquiesced in the use of the land by the public as a street. As he lived in the vicinity, he must be presumed to have known that the people were acquiring rights, with reference to the street, of which the land in dispute formed a part, by erecting buildings thereon, and otherwise, and that they were using the land as a highway, yet there is nothing to show that he ever objected to such use, but it does appear that he permitted the land to be used in common with the other portions of the street for traffic and teams without interference, so far as shown by the record. Thus his conduct and acts were calculated to induce'the people to believe that the land was devoted to the purpose of a street, and to lull them into security, as to any rights they might acquire with reference thereto. As a result of all this about twenty houses, with people living in them, are now fronting the street. Under such circumstances the law will imply a dedication, the intention of the owner being unequivocally manifested by his conduct and acts.

Since, then, the dedication was complete, was there an acceptance by the public % On this point it is shown in evidence that the strip of land, in dispute, is necessary for the convenience and accommodation of the public, and that without it the street would be but one and a half rods wide, and would not be of sufficient width to permit some teams to turn around. It also appears from the proof that the land, after the fence was built which left it in the street, was continued to be used, more or less, by the public, until the obstruction, which gave rise to this controversy, was placed thereon. Erom these circumstances an acceptance, on the part of the public, may be inferred. The owner of the soil having thus dedicated it for the purposes of a highway, and the same having been accepted for such purpose by the public and the people having never relinquished their rights so acquired, all subsequent grantees of the abutting lands are bound by the dedication and have no right to obstruct any portion of the street. Elliott on Roads and Streets, pp. 115, 116.

It is true there is some conflict in the evidence relating to the dedication by the owner of the land, and the acceptance by the public, and the findings of fact, hereinbefore referred to, are thus based upon conflicting evidence, but there appears to be a decided preponderance of proof in. support of them, and, therefore, this court will not disturb them. Likewise as to the other findings, and the conclusions of law of which the appellants complain. In such a case the findings of the trial court will not be disturbed unless they are so manifestly erroneous as to demonstrate some oversight or mistake. Whitesides v. Green, 13 Utah 341.

The appellants also insist that the court erred in admitting in evidence, against their objections, certain statements and declarations, relating to the appropriation of the land in controversy for street purposes, made by the owner of the land about the time of the dedication. The objection to the admission of such statements and declarations is based upon the-ground that the person, who made them, is dead and the witnesses, who testified to them, are parties to the suit and interested in the result thereof. It is, therefore, urged that such testimony was inadmissible under section 3413 Revised Statutes. Since, however, this case was tried by the court and not before a jury, and since, as we have concluded, there is ample evidence in the record, clearly competent, to sustain the decree and judgment, and as the same result would be inevitable, if this evidence had been excluded, we do not deem it necessary or important to determine whether or not the statute invoked applies in a case like the one at bar, and therefore refrain from passing upon the question here presented. Schroeder v. Pratt, 60 Pac. Rep. 512.

We find no reversible error in the record. The- judgment is affirmed with costs.

Baskin, J., and Kart, D. J., concur.