Oswald v. Grenet , 22 Tex. 94 ( 1858 )

Wheeler, Ch. J.

This case was before the court on a former appeal. (15 Tex. Rep. 118.) Since it was remanded, there have been two verdicts for the plaintiff; and the question now is, whether the evidence of a dedication to the public, of the spot of ground which gave rise to this controversy, is sufficient to warrant the verdict.

Respecting what will amount to, or may be received as evidence of a dedication, the law is too well settled to admit of controversy. A setting apart, or dedication to a public use, to be effectual, need not be by deed; nor need it be evidenced by the use of it having been continued for any particular time ; it is enough, that there has been some clear, unequivocal act, or declaration of the proprietor, evidencing an intention to set it apart for a public use, and that others have acted in reference to, and upon the faith of, such manifestation of intention. If the act of dedication be unequivocal, it may take place immediately. If there be no such act, it may be evidenced by an uninterrupted use; and that need not be for any particular time. Eight, and even six years, have been held in England, time sufficient to raise the presumption of a dedication from user; but it will depend upon the particular circustances of each case. (Trustees, &c. v. Merry weather, 11 East, 376; R. v. Hudson, 2 Str. 909; R. v. Wright, 3 B. & Ad. 681; Woodyer v. Hadden, 5 Taunt. 125.)

A dedication has been defined to be, the act of devoting, or giving property, for some proper object, and in such manner as to conclude the owner. (Hunter v. Trustees, &c., 6 Hill, 407, 411.) Thus, if one owning land, exhibit a map of it, on which a street is defined, though not as yet opened, and building lots be sold by him, with reference to a front or rear on that street, this operates.as an immediate dedication of the street; and the purchasers of lots, have a right to have the street thrown open forever. (Wyman v. Mayor, &c., 11 Wend. 486; Livingston v. Mayor, &c. 8 Id. 85; 1 Hill, N. Y. 189, 192.) .And this principle is not limited in its application to the single street, on which the lots of the purchasers are situated. In the American notes to the leading case of Dovaston v. Payne, reported in Smith’s Leading Cases, the general doctrine is thus stated, upon the authority of numerous cases. “ If the owner of land, “lays out and establishes a town, and makes, and exhibits, a “plan of the town, with various plots of spare ground, such as “ streets, alleys, quays, &c., and sells the lots, with clear reference “to that plan, the purchasers of the lots, acquire, as appurtenant “to their lots, every easement, privilege,.and.advantage, which “theplan represents as belonging to them, as part.of,the town, “or to. their owners, as citizens of the.town. And the right thus “passing to the purchasers, is not ,the mere right that the purchaser may-use these, streets, or other public places, according “to their appropriate purposes,but a right vests in the purchasers, “that all persons whatevei’, as their occasions may require or incite, may so us.e them; in other words, the sale and conveyance. “of lots-in the town, and according to its plan, imply a grant or- “ covenant to the purchasers, that the streets and other public “places, indicated as such upon the plan, shall be forever open to “the use of thepublic, free from all claim or interference of the “ proprietor, inconsistent with such use.” (2 Smith’s Lead. Cas. 5th Amer. edit. 208, 209; Rowan’s Ex’rs v. Portland, 8 B. Mon. 232, 237 ; 3 Ib. 478, 481; 18 Ohio, 18; Spencer, 86, 106 ; 11 B. Mon. 163.) The principle upon which the binding and irrevocable nature of a dedication rests, appears to be this, that when once a way, street, &c., has been laid out on the soil, or on a map, and property has been purchased in reference thereto, the resumption of the street, or way, by the proprietor, would be an act of bad faith, and a fraud upon any interests acquired upon the faith of its being left open. Hence, it operates as an estoppel in pais, of the owner, from exclusive use of' the property, or indeed any use, which is inconsistent with the public use, to which it has been dedicated. It precludes the party from re-asserting any right over the land, so long as it remains in public use. (City of Cincinnati v. Lessee of White, 6 Peters, 431, 439; New Orleans v. The United States, 10 Peters, 662; 16 Penn. State, 89; 14 Barbour, 521.) In Abbott v. Mills, 3 Verm. 521, 527, it was said, “the act of “ throwing open the property to the public use, without any “other formality, is sufficient to establish the fact of a dedication to the public; and if individuals, in consequence of this “act, become interested to have it continue so, as by purchasing property, &c., the owner cannot resume it.” There are numerous authorities to the same effect. (State v. Catlin, 8 Verm. 530; 3 Zabriskie, 140 ; 3 Id. 354 ; 8 B. Mon. 232, 237.)

To apply this doctrine to the case before us. The lots in this addition to the city of San Antonio, were sold with express reference to a map, on which this space, if not left open as a common or public way, was, at least, not numbered or marked as a lot; and from its peculiar situation and form, the natural inference of those who consulted the map, with a view to purchase, would be, that it was intended to remain an open space, common, or way, for public use. The witness, McLeod, (the original'purchaser from whom the plaintiff derived his title,) testified, that such was the express understanding between himself and the proprietor, when he made the purchase. He states that the proprietor told him, before he bought lots 21 and 22, that this space would always be kept open; that there should never be any buildings or obstructions upon it; and that this was his inducement to purchase these lots; that he purchased with a view to the open sjtace, and that it was the understanding between himself and the proprietor that it should remain open. If the jury believed the testimony of the witness,—and it was for them to judge of his credibility—it cannot be doubted, that the evidence was sufficient to warrant them in finding the fact of a dedication of this spot to public use.

But other witnesses testified, that this open space was left, and designed by the proprietor, for a public well; and the great weight of the evidence is to that effect. Some of the witnesses understood the proprietor to say, he would give it for a public well, if the neighbors would make the well; but the understanding of all, was, that it had been left, or would be given, for a public well; and that accords with the testimony of the witness McLeod, that it should remain open, and no buildings or obstructions should be placed upon it. It would so remain, if a public well was sunk there. There would probably be no structure to obstruct the view; and that, it seems, was what he considered material, and what he had in view in making a purchase. "What he, and others probably, in the vicinity, were interested in, was, not that a public well should not be sunk there', for that would probably enhance the value of their property, but that there should be no building erected there to obstruct the view. What concerned them was, that the space should be kept open, and not be occupied by a structure like that which defendant has placed upon it; which according to the testimony of all the witnesses who speak to that point, materially impairs the value of the plaintiff’s property. It would be, it would seem, quite immaterial to them, whether the space was to remain open for public use, as a way, or common, or the site of a public well, so that no structure was placed there to obstruct the view, and thus impair their comfort or convenience. That the acts and declarations of the proprietor were such as to create this expectation, is indisputably established by the concurrent testiinony„of all the witnesses. Good faith required that this expectation, thus created by the proprietor, should be fulfilled by him; and the principle of a dedication applies equally, whether the particular manner of the use was designed to be in the one way, or the other. Unquestionably, there was a dedication of this space to that extent; and it operated as an estoppel upon the proprietor, from resuming the exclusive use of the property, or any use of it, inconsistent with that to which it had been dedicated, and in reference to which interests had been acquired by others.

But, leaving out of view the interest which purchasers of property in the vicinity had in keeping this space open, and the view unobstructed, and assuming that this space was to be given to the public for a well, upon the condition that the inhabitants would dig the well, it cannot be supposed that it was contemplated, that this would be done immediately, or until the wants or convenience of the inhabitants required it. This part of the city must first be peopled, before there would be inhabitants to dig, or have occasion for a well. It might be many years before this part of the city would become sufficiently populous, to require the convenience of a public well. It is not pretended, that there was any time limited within which it must be made. Those who purchased in view of the proffer of this use, had the right to suppose that it would not be withdrawn, nor could it be, to their detriment. Their purchase, in view of this proposed use, made it a dedication of the property for that use, which could not be resumed, until it should first be determined by non-user ; and this cannot be presumed from a lapse of less time than that which would raise the presumption of a grant of the use. (2 Smith’s Lead. Cases, 5th Amer. edit. 211; 6 Rich. 296.) And it would seem, that time would not commence to run for that purpose, until the period might reasonably be supposed to have arrived, when the particular use ought to commence. However that may be, it is certain, that the dedication could not be resumed because the well was not dug immediately, or within three or four years. In the very nature of such a dedication, in laying out a new town, or an addition to an old one, it is implied, that the property will not be applied to the use intended, until the town shall have become sufficiently populous, to make such an appropriation subserve the interest and convenience of the inhabitants. There can arise no presumption of a release of the dedication, in such a case, from non-user for a period of four or five years ; and less than five years had elapsed, when the exclusive use of the property was attempted to be resumed, and it was built upon by the defendant.

In any view of the case, we think the evidence sufficient to warrant the jury in finding the fact of dedication to a public use; and there is nothing in the evidence to warrant the resumption of the property by the proprietor. In oiu’ view of the law of the case, in its application to the evidence, it will be seen, that our opinion is, that there was no error in the charge of the court, or in the overruling of the motion for a new trial.

On the former appeal, there was nothing in the record to show for what use this spot of ground was intended; and the very material difference between the case as then, and now presented, will be sufficiently apparent without further comment. But it maybe proper to observe, that we may then have attached too much consequence to the fact, that the deeds read in evidence called for the streets, instead of this small open space surrounded by streets. The fact that it was thus separated from the lots, by streets upon which the lots fronted; its peculiar form, not being a square, nor capable of being described as a public square, but being a small triangle, so small and so situated, as not to be capable of being conveniently made the subject of a descriptive call, sufficiently accounts for the fact that it was not so made in the deeds. The street was itself a more prominent object than this spot of ground, and of course the street would be made the descriptive call in the deeds.

We are of opinion, that there is no error in the judgment, and it is affirmed.

Judgment affirmed.