Lansburgh v. District of Columbia ( 1896 )

Mr. Justice Shepard

delivered the opinion of the Court:

i. The first point of the appellant is, that granting the effect of his .letter to be a valid dedication to the public use as part of the highway, still, it did not convey his title to the land itself, or his right to the possession thereof; and that, the defendant having admitted his' title to the land,' the possession of which he sought to recover, he was entitled to judgment. He contends that the court treated the letter as, in effect, a conveyance of the land itself, instead of a mere easement therein, thereby barring his recovery.

Without pausing to consider the effect of the failure of appellant to make this point below, we hold that it is not well taken.

This is not the case of a suit by the owner of land, with a highway upon it, against a trespasser holding adversely to the owner as well as to the public right. In such case, it may be that the owner of the fee could recover possession in ejectment, subject to the public easement, and there is much authority in support of his right to do so.

Here, howevér, he seeks recovery of the District of Columbia, the authorities of which are charged by law with the construction, maintenance and regulation of the highway for the benefit of the public. The possession of the District is of that character only, under the right conferred by plaintiff’s letter authorizing the public use. It claims nothing more than the right to keep the road, or street, open for public use as a highway, as widened by the inclosure of his strip of land.

The old county road, thirty-three feet in width, became in course of time one of the thoroughfares of the city of Washington. Adjacent owners (plaintiff among others) and the Commissioners agreed that it was for the public benefit to widen the. old road into a modern city street. Possession of the strip of land was taken under the authority given in the plaintiff’s letter. It was included in the street, improved as a part thereof, and separated from the remaining land by a permanent curb.

That possession, in direct accord with the dedication made by the plaintiff to the public use and taken for the purpose and to the extent, only, of improving and maintaining the street and regulating its use and enjoyment as such by the public, must necessarily be exclusive of any interference on the part of the plaintiff, or the exercise by him of any right inconsistent therewith. City of Cincinnati v. White, 6 Pet. 431, 441. In that case the owners of the land made a plan for the town, reserving, the lot of land in controversy, lying along the river front, for the use of the public. This was some years before the incorporation of the city of Cincinnati, embracing the premises. The owner of the legal title brought an action of ejectment against the city. His contention, as stated by the court, was, “ that the lessor of the plaintiff has shown the legal title to the premises in question in himself, which is enough to entitle him to recover at law ; and that the defendants’ remedy, if any they have, is in equity.”

To that contention the court answered : “ We do not accede to this doctrine. For should it be admitted, that the mere naked fee was in the lessor of the plaintiff, it by no means follows that he is entitled to recover possession of the common in an action of ejectment. This is a posses-sory action, and the plaintiff, to entitle him to recover, must have the right of possession ; and whatever takes away this right of possession, will deprive him of the remedy by ejectment.” Again, it was said (page 443): “ The purpose for which the action is brought, is not to try the mere ab stract right to the soil, but to obtain actual possession; the very thing to which the plaintiff can have no exclusive or private right. This would be utterly inconsistent with the admitted public right. That right consists in the uninterrupted enjoyment of the possession. The two rights are therefore incompatible with each other, and cannot stand together. The lessor of the plaintiff seeks specific relief, and to be put into the actual possession of the land. The very fruit of his action, therefore, if he avails himself of it, will subject him to an indictment for a nuisance; the private right of possession being in direct hostility with the easement or use to which the public are entitled ; and as to the plaintiff’s taking possession subject to the easement, it is utterly impracticable.”

2. The letter of the plaintiff to the Commissioners was not, as contended, mere evidence of an intention to make a donation by deed, and inoperative until carried into execution in that way. It was, in itself, a sufficient dedication to the use applied for, and when accepted and acted on by the Commissioners, as shown by the evidence, worked a complete estoppel. Morgan v. Railroad Co., 96 U. S. 716. And it is well settled that an equitable estoppel of this nature is available as a defence at law as well as in equity. Dickerson v. Colgrove, 100 U. S. 578; Kirk v. Hamilton, 102 U. S. 68; Drexel v. Berney, 122 U. S. 241, 253; Cincinnati v. White, 6 Pet. 431, 438.

3. At the time of the dedication under consideration, the Commissioners were possessed generally of the powers and duties that had been conferred upon former District governments, with respect to streets and highways in general. Among these was the power to widen existing roads to not more than one hundred feet. R. S. D. C, sec. 250.

The widening of Columbia road was therefore within their power and discretion, and they were the proper persons to receive dedications of land for the purpose. No act of Congress was necessary, and it is immaterial, so far as the plaintiff is concerned, whether there was, or was not, an express appropriation of money for the purpose.

Notwithstanding the authorities cited by the appellant, it may well be doubted whether, as against the right of the owner to retract a dedication once formally made to public use, it is necessary that there shall have been a formal acceptance by the public authorities, in any case. Probably the question would turn upon the peculiar circumstances of each particular case, and not be controlled by a single general rule. We can conceive a marked distinction between the right of the owner .to bind the public authorities by his. dedication to public use, in so far as to make it their duty to accept and repair a highway and also to render them liable for failure to do so ; and the right of the public authorities to prevent retraction by the owner whenever, in their judgment, the wants or convenience of the public might require. These questions, however, do not properly arise here, and need not be decided or further noticed.

It is true, there was no formal acceptance of the plaintiff's dedication. The Commissioners made no reply to the plaintiff’s letter. It is apparent, from his letter, that a formal reply was neither required nor expected. But an acceptance may, in all cases, be implied from conduct and be as effectual as one expressly made.

Unquestionably, one of the best and surest indications that the dedicating owner or the general public can have of acceptance by the public authorities, is the actual occupation and construction or repair of the road or street by them. 2 Dillon Municipal Corp., sec. 642; Elliott, Roads and Streets, pp. 115, 116. The evidence showed that the defendant, immediately upon the receipt of plaintiff's letter, took possession of the strip of land, included it in the highway, and spent considerable money in preparing -it for the public use to which it had been dedicated.

These acts, performed immediately after the receipt of plaintiff’s letter, and in strict accordance therewith, were amply sufficient to estop his recovery of the land; and the court was right in so charging the jury.

The judgment must he affirmed, with costs to the appttiec. And it is so ordered.