Tobel v. City of Lewistown , 41 Mont. 226 ( 1910 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This suit was “brought to obtain an injunction restraining the city of Lewiston from opening or attempting to open a public street through certain premises claimed by the plaintiff. The plaintiff alleges that he is, and for more than twenty years last past has been continuously, the owner and in possession of certain lands situated within the corporate limits of the city of Eewistown (then follows a description by metes and bounds); that Third avenue in said city abuts on his property, and that about August 16, 1907, the city, without any right and against the will of the plaintiff, tore down his fence inclosing his property and threatens to, and, unless restrained, will, open and extend Third avenue through his property for a distance of about three hundred feet. The answer admits that defendant tore down plaintiff’s fence, that unless restrained it will open and extend Third avenue through his premises; but denies that in so doing it has acted or will act wrongfully. The answer then contains new matter by way of defense, to the effect that in 1882 Francis A. Janeaux and wife were the owners of the S. W. 14 of the N. E. % of section 15, township 15 N., range 18 E., in Meagher (now Fergus) county; that they then caused a portion of said land to be surveyed and platted as a townsite, and a plat thereof to be duly filed in the office of the county clerk and recorder; that one of the avenues surveyed, stale •1 out, and made to appear on said plat was and is the Third avenue mentioned above; that thereafter, in 1881, the said Janeaux and wife again caused the said lands to be surveyed, staked out, marked and platted, and a plat thereof to Toe filed in the office of the county clerk and recorder; but, by mistake, the plat and indorsements thereon made it appear that the land so surveyed and platted was the S. W. *4 of the N. W. % of said section 15, whereas it was intended to represent the S. W. % of the N. E % of said section; that thereafter, on August 20, 1890, for the purpose of correcting the erroneous description, an .amended map or plat was filed; that in making the surveys, marking and designating the lots, blocks, streets, avenues, and alleys, and in filing the plats, it was the intention of the owners to “devote, remise, grant, quitclaim, convey and dedicate the streets, avenues and alleys thus staked off, laid out, marked, and designated to the public for its use and benefit forever.” It is then alleged that in 1886 the plaintiff purchased from Francis A. Janeaux and wife the land now claimed by him, and received a deed therefor which described the land by metes and bounds, which description concludes: “Except the streets and alleys contained thereon.” It is further alleged that within the exterior boundaries as given in the deed above there was a portion of Third avenue, a.portion of Water street, and a portion-of the alley which passes through block S22, and that the respective portions of said avenue, street, and alley were expressly excepted from the grant contained in the deed to plaintiff. It is then alleged that the public accepted the dedication of the streets, avenues and alleys, and, as rapidly as the same could be, they were improved and used by the public. Most of these affirmative allegations were put in issue by reply. There is in the reply also a plea of the bar of the statute of limitations, a plea of estoppel in pais, and an attempt to plead title by adverse possession. The trial court found in favor of plaintiff on his plea of adverse possession, and further found that the evidence was not sufficient to show that any of that portion of Third avenue in question had ever been dedicated to the public as a street, highway or otherwise. From the findings made the court concluded that the acts of the defendant city in attempting to extend Third avenue through plaintiff’s property were wrongful, and that plaintiff was entitled to a permanent injunction restraining the city from further interfering with his possession of that particular portion of his property. From the decree entered in favor of plaintiff and from an order denying it a new trial, the city appeals.

Much of the argument of counsel for the respective parties is devoted to a consideration of two questions: (1) What is necessary to constitute a valid and effective dedication of a street; and (2) does the statute of limitations run against a municipal corporation with respect to property held in trust for the public use ? While a discussion of these questions would involve many interesting legal propositions, we do not deem it necessary to consider either of them to any great extent. This is a suit in equity, and the evidence is all before us. It therefore devolves upon us to make such disposition of the questions involved as the exigency of this particular case requires.

The record discloses that in 1882 Janeaux and wife filed the first plat of the original townsite of Lewistown. At that time there was not any statute authorizing such procedure. Therefore the acts done by the owners of the property in that year could not amount to a statutory dedication of the streets, avenues and alleys; furthermore, the 1882 plat does not embrace the premises now in controversy, and, so far as this case is concerned, all evidence touching that survey and the proceedings had thereon is of little or no value. In 1884, after the passage • and approval of the Act of February 19, 1883, authorizing the laying out of townsites on private property, Janeaux and wife caused a portion of forty acres to be surveyed, staked out, and platted, and a plat thereof to be filed with the county clerk and recorder, but by a mistake that plat and indorsements thereon are made to describe and represent land a quarter of a mile away from the original townsite of Lewis-town. In several minor particulars the proceedings taken at that time did not conform to the statutory requirements. This, then, was the condition of affairs when, in 1886, this plaintiff purchased the land now claimed by him, went into possession, and commenced improving the same. In 1890 the mistake in the 1884 plat was discovered, and an attempt was made by the administratrix of the Janeaux estate to correct the same by having another plat filed; but the evidence fails to show that any authority was sought or obtained from the probate eourt for the proceedings taken. From the evidence presented in this record we are left somewhat in doubt as to whether Third avenue, where it passes through the property claimed by plaintiff, was ever actually surveyed. McFarland, who made the survey for Janeaux and prepared the 1884 and 1890 plats, testified that he could not remember whether he established the corners along that portion of Third avenue. But these facts are recited! only for the purpose of showing that at the time plaintiff purchased the property, and went into possession of it, it was at least doubtful whether any attempt had been made to dedicate that portion of Third avenue to the public use. In view of these conditions, and the fact of the proximity of this property to the business center of the city; the fact that Third avenue, before it reaches the boundaries of plaintiff’s property, has been during all these years practically cut off and terminated by a creek and slough, and that it will require great ■ expenditure of time and money to improve it; the further fact that there is some evidence that the survey of the original town- ■ site did not extend to the east line of the forty-acre tract, and therefore the city would be without authority to connect this avenue with any other street or alley, or, to speak more ac■curately, would be confronted with a strip of land from thirty to thirty-five feet in width, extending diagonally across this avenue, to which strip of land the plaintiff appears to have a good title—all lead us to entertain a serious doubt whether the ■city ever intended to assert any claim to this particular portion •of Third avenue, so called, until this controversy arose. And in view of the fact that for more than twenty years the city has lain by and without objection has permitted plaintiff to occupy this portion of the so-called Third avenue and at considerable -expense to place permanent improvements thereon, and the fact •that the plaintiff must sustain great injury in having a portion of his premises segregated from the rest, by the opening of this avenue, that he would be compelled to remove his barn and -other outbuildings, and would suffer his trees, vines and shrubbery to be destroyed, it would seem extremely inequitable for "the city at this late date to assert its right to devote to public use, without compensation to the plaintiff, a portion of this •property which he has so long claimed and the undisputed possession of which he has so long enjoyed. Under these cir■cumstanees, we think the city should be, and is, estopped to assert the claim which it now makes.

In 2 Dillon on Municipal Corporations, fourth edition,'section ’675, it is said: “The author cannot assent to the doctrine that, as respects public rights, municipal corporations are impliedly within ordinary limitation statutes. It is unsafe to recognize such a principle. But there is no danger in recognizing the principle of an estoppel in pais as applicable to exceptional cases, since this leaves the courts to decide the question, not by the mere lapse of time, but upon all the circumstances of the case, to hold the public estopped or not, as right and justice may require.” Acting upon the doctrine of this text, the courts have repeatedly applied to municipal corporations the doctrine of equitable estoppel, and we think it peculiarly applicable here. (John Mouat Lumber Co. v. City of Denver, 21 Colo. 1, 40 Pac. 237; Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176, 36 L. R. A. 489; Orr v. O’Brien, 77 Iowa, 253, 14 Am. St. Rep. 277, and note, 42 N. W. 183; Chicago & N. W. Ry. Co. v. People ex rel. Elgin, 91 Ill. 251; Piatt County v. Goodell, 97 Ill. 84; Hamilton v. State, 106 Ind. 361, 7 N. E. 9; Paine Lumber Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108.)

Without determining whether the trial court was correct upon the theory which it adopted, we approve the result, but prefer resting our decision upon the application of the doctrine of estoppel in pais. The judgment and order are affirmed.

Affirmed.

Me. Chief Justice Bbantly and Mr. Justice Smith concur.