Giles v. Ortman , 11 Kan. 59 ( 1873 )

The opinion of the court was delivered by

Brewer, J.;

This was an action brought by Ortman in the district court of Shawnee county, to quiet title. The case was tried by the court, without a jury. Special findings of fact were made, and a decree entered in favor of the plaintiff, quieting his title to a portion of the property, and refusing him any relief as to the remainder. He thereupon commenced proceedings in error in this court, but we held that there was no error in the record of which he could complain and affirmed the judgment. Ortman v. Giles, 9 Kas., 324. The defendant Giles now alleges error, and seeks a reversal of the judgment so far as it quieted the title of the plaintiff to any portion of the property.

Two or three questions are presented for our consideration. Thé first is this: The court found that Ortman was in possession. It is insisted that the testimony does not sustain this finding. The bill of exceptions recites that it was proved that the plaintiff “used the lot for keeping his wood and buggy on,” that he “built a sidewalk on Kansas avenue in front of said lot, and being two or three inches on said lot, and paid for same; also dug a trench on same for wall, and filled up in front to bring sidewalk to the grade, and dug out in front for area,” etc. This, to say the least, is some testimony tending to show possession, and in the absence of any other, sufficient to sustain the findings. Gilmore v. Norton, 10 Kas., 491.

The plaintiff in error further claims that the court erred in its finding that the property in dispute was, from December 1857 to April 11th 1866, an alley of the city of Topeka. It was proved that the plat, as adopted by the town association, described these premises as a part of a lot, but that before the same was acknowledged or recorded the president, by the authority of the trustees, made the change. It is claimed that no authority was shown in the president or trustees. It was proved that the association had a constitution and bylaws for its government, but neither were in evidence, so that the duties and powers of the defendant officers, as therein prescribed, were not shown. But it was also proved (such is the language of the bill of exceptions,) that the association had “for officers a president, secretary, and seven trustees to manage the affairs of the association.” The management of the affairs of an association is shown to be in certain officers. They perforin an act which is within the scope of the powers ordinarily entrusted to such officers. No limitation on their powers is shown. The association is not questioning either their power or the propriety of the act. In a contest between third parties the district court finds that their act was within their authority. We see no reason to reverse this finding.

It is further claimed that there is not sufficient proof that the president of the town association did make the change, or perhaps more correctly that the acts shown do not amount to a change and a dedication of the ground for public use as an alley. It was proved that prior to the lithograph plat, that is, the plat adopted by the association, a plat had been-prepared, upon which these twenty feet (the strip in controtroversy) were platted as an alley; that by the lithograph plat the twenty feet and five feet adjoining were platted as a lot, and numbered as “Lot 169” on the plat; that at the time the change was made, which was before the acknowledgment of the plat, the president, under the direction of the trustees, with the intention of making room for an alley twenty feet in width, “ erased or run the mark of a pen through the figures £ 169’ on the lithograph plat;” that on the same day the plat was acknowledged, and filed for record; that afterward, and in 1865, the president as special trustee executed a deed for the five feet adjoining the premises in controversy, and forming a part of lot 169 as platted on the lithograph plat, which was described as adj.oining an alley. It was proven that the intention was to dedicate; that this dedication was made, and that afterward it was recognized. We think the grantors themselves might upon such testimony be estopped from denying the dedication. Certainly, as between third parties a finding of a dedication will not be disturbed.

One point more remains for consideration. It is claimed that if this was an alley the city could not convey it away, and that therefore Ortman proved no' title in himself. Whether the ordinance and quitclaim deed of the city transferred the fee, or operated merely as a license to occupy, we do not deem it necessary now to decide, for in either event Ortman had a lawful and actual possession, and a right to have any adverse interest determined. Civil Code, §594; Eaton v. Giles, 5 Kas., 28; Brenner v. Bigelow, 8 Kas., 496. The judgment of the district court will be affirmed.

All the Justices concurring.