City of Denver v. Clements , 3 Colo. 472 ( 1877 )

Thatcher, C. J.

In 1859, B. D. Boyd made and filed a map of the city of Denver, included within whose limits was the south half of the north-east quarter of section thirty-four, township three, range sixty-eight. The title to this land just described was at that time in the United States.

On the 11th day of May, 1864, a certificate of pre-emption, and on the 1st day of December, 1865, a patent was issued to Alfred H. Clements for this tract. January 23, A. D. 1869, the patentee sold and conveyed all his interest in said land to Caleb B. Clements, who in turn sold and conveyed his interest therein to R. T. Clements. The patentee, and each of the subsequent grantees, sold and conveyed many lots and parcels of land to individuals according to the Boyd survey, the conveyances thereof referring to the map and survey of Boyd for description, but did not dispose of any portion of Block ‘ A.’ January 17th, 1870, Caleb B. Clements filed in the recorder’s office of Arapahoe county, his map of ‘Clements’ addition,’ which, among other lands, embraced the eighty acre tract above described, and upon which was delineated Block ‘ A,’ without any street or alleys traversing it. The addition, except as to Block ‘A,’ conformed to the Boyd survey. Welton street, as marked on the Boyd plat, extended through Block ‘A,’ and its location upon the map of Clements’ addition was identical with its location on the Boyd plat, except through Block ‘ A.’

This block was inclosed with a fence, planted in trees and shrubbery, and occupied by A. H. Clements and the subsequent purchasers for residence purposes, from January, 1864, to September of 1874, when the city of Denver, by virtue of an ordinance, took possession of so much of Block ‘ A ’ for street purposes, as was necessary to make Welton street a continuous one as designated on the Boyd plat.

City taxes were assessed and paid upon Block ‘A’ as a whole, continuously from the date of its entry by preemption up to the time this suit was brought. Although there are fifteen specifications of error, there are but two questions presented.

1. In view of all the facts and circumstances disclosed by the record, was there a dedication (for the use of the public) of Welton street through Block ‘A 1 ’

2. In the event that Welton street was not so dedicated through Block ‘A,’ were the instructions of the court in relation to the measure of damages to be allowed warranted by the agreed statement of facts %

A dedication of land to public use may be made either according to the common law, or in pursuance of statute. The distinction between these two kinds of dedication is quite manifest, and must be kept constantly in view in determining the rights of the city of Denver in this controversy. When, the dedication is statutory no act of acceptance on the part of the city is required to impose upon it the obligation to keep the streets in repair. The moment the plat of a city or an addition thereto is made, filed and recorded by the proprietor thereof in compliance with the statute, the fee of all the streets, alleys, avenues, highways, parks and other parcels of ground, reserved therein to the use of the public, vests in such city in trust for the uses expressed. B. S., 1868, § 5, ch. 84.

As at- the date of the Boyd survey and plat, the title to the land now embraced in Clements’ addition was in the United States; as neither of the subsequent owners thereof had any interest therein, either legal or equitable, at that time, so far as the record shows, the filing of the plat cannot be said to have operated to vest the fee of the streets therein designated in the city for public use.

A statutory dedication operates by way of grant. The law surrounds the act of dedication with all the formalities and solemnities necessary to the creation of a grant. The plat must be signed, acknowledged and recorded. Without a substantial compliance with the statute by the proprietor of a city or addition thereto, the estate in the streets intended to be conveyed would not pass to the city in trust. That there was no statutory dedication prior to the filing of the plat of Clements’ addition in 1870 is clearly apparent from the record.

Was there a common law dedication for the use of the public?

A common law dedication operates by way of estoppel in pais, rather than by way of grant. We must, therefore, consider the acts of the several proprietors of the Clements’ tract for the purpose of determining whether by their acts they are precluded from denying the existence of a public easement through the entire length of Welton street as designated on the Boyd plat.

The constant sale of lots in this addition after the acquisition of the title from the United States, extending through a period of five years, up to the date of the filing of the statutory plat, by reference to the Boyd map for descrip-' tion, upon which were laid out streets and alleys, in accordance with the original plan of Denver City, must be regarded as a ratification and adoption of the - Boyd map as binding upon A. H. Clements and the subsequent proprietors, as though the plat had been prepared at his or their instance. When a vendee purchases a lot, marked on a plat of city property, designating streets thereon, the plat being referred to for a description of the premises conveyed, the popular understanding, and a reasonable con-' struction of the intention of the grantor are, that the vendee, by virtue of the purchase, is entitled to all the appurtenant advantages, privileges and easements, which the plat proclaims to exist, so far as the land embraced by it is owned by the grantor. A lot is bought as urban property, and with the conveyance of the land pass all the incidents necessary to a proper enjoyment of- the grant. The plat to-which reference is made is a material part of the deed, which must be construed to have the same eíféct as if the' plat had been incorporated into it. By the plat-, the -right' which each lot-holder has in common with other lot-holders and the public in the streets of the city is exhibited. Birmingham v. Anderson, 48 Penn. 258; Rowan's Ex. v. Town of Portland, 8 B. Monr. 232.

Where no express reservation is made in an absolute deed, the most valuable estate which the vendor can sell necessarily passes ; hence, as public streets are moré desirable and valuable than private ones, it must be held that the proprietor intended to convey, as appurtenant to the lots sold, the platted streets as public and not as private' ways. Stone v. Brooks, 35 Cal. 499.

The generally accepted doctrine upon this subject is expressed by Angelí on Highways, § 149, in the following language : “ In this country there is quite a large class of cases in which dedication has been inferred from the-sale of land, described by reference to a map or plat, in which the same is designated as laid off into lots, intersected by streets and alleys. It may be stated as a general rule, that where the owner of urban property, who has laid it off into lots, with streets, avenues and alleys intersecting the same, sells his lots with reference to a plat, in which the saíne is so laid off, or where there being a city on which this land is so laid off, he adopts such map by sales with reference thereto, his acts will amount to a dedication of the desig-' nated streets, avenues and alleys to the public.”

It is a matter of common observation that although streets may be designated on a city plat, or on a plat of a city addition by the proprietor thereof, generally they are not all thrown open to the public until after the sale of lots thereon, and frequently not until the public convenience requires it. Until snch time, the original character of the platted premises, as prairie, timber, or fallow lands remains unchanged. But whenever the increasing population and growing business interests of the city necessitate the opening of such streets, the effect of the adoption of the plat of the city, within the corporate limits of which the addition is situated, and on which plat are designated the streets running continuously through the addition, and with reference to which city plat the proprietor of the addition, as often as opportunity 'offers, sells lots, is to declare and dedicate the streets within the addition to public use. The unqualified recognition of the plat is not consistent with any other construction. The fact that the city acquiesces in the use of the streets for a limited period does not militate against this view. Nor is it thought that the payment of taxes on that portion of Block £A’ through which Welton street passes, the fee to which is still in the proprietor of the addition, estops the city from asserting the dedication.

Before the acceptance of the dedication the city was not bound to keep the streets open and in a safe condition. Although until the acceptance, the city was under no obligation to repair, the proprietor was nevertheless bound by his acts. Mayor of Jersey City v. Morris Canal & Banking Co., 1 Beas. 554.

A dedication maybe made in prcesenti to be accepted by the public in futuro. Mayor of Jersey City v. Morris Canal & Banking Co., 1 Beas. 563; Trustees of M. E. Church v. Council of Hoboken, 33 N. J. 22; Town of Derby v. Alling, 40 Conn. 410.

It is held in the earlier cases in the State of New York, that even where there has been a dedication of streets to public use, a condemnation is necessary, and that the dedicator, even after the sale of lots abutting on the streets, is entitled to nominal damages, as .a compensation for the fee of the streets in the front of such lots, which under the laws of that State vests in the city for the uses declared.. Wyman v. The Mayor of New York, 11 Wend. 486; Livingston v. The Mayor of New York, 8 id. 85.

The doctrine of these cases, so far only .as relates to the dedicator being entitled to any compensation under the circumstances, is repudiated by the court of appeals in Bissell v. New York Central R. R. Co., 23 N. Y. 66, on the ground that with the sale of lots the fee of the street to the center thereof in front of the lots sold, passed to the vendee. But where the ots fronting on a street dedicated to the public use have not been sold by the proprietor, the fee of such street to the center in front of the unsold lots remains in him, charged with a public easement; and if upon condemnation the fee uiider the statute passed to the city, the proprietor would be entitled to nominal damages.

Where a statutory plat has been filed, the fee of the streets, as we have seen, vests under the law in the city. But as when the dedication is not statutory no such result follows, there is nothing for which the lot-owner is to be compensated. The fee does not vest in the city. The corporate authorities by their acceptance assert jurisdiction over a street dedicated to public use, and assume obligations in respect thereto, without divesting the fee from the owner of the abutting lots.

As so much of Welton street as extended through Block ‘A’ was a public street by dedication before the removal of the fence that obstructed it, the city council was but exercising its lawful authority in causing the obstruction to be remoyed. The finding of the court upon the agreed statement of-facts should have been for the defendant.

For a further discussion of the dedicatory effect of- a sale of city lots with reference to a plat, see Dillon on Mun. Corp., §§ 503, 505, and cases cited.

To hold that the city must compensate the appellee where an easement already dedicated to the public is accepted by its statutory representative, is to declare' that a donee must pay for the privilege of accepting a gift. The title to the fee in a street, for which, in New York, as we have seen, after there has been a dedication to the public by the proprietor, merely nominal damages are allowed, in the case before us, remains where it was before the acceptance of the easement by the public’s statutory representative, and hence the ground for even nominal damages, which holds in that State, does not exist here.

As this disposes of the case, it is unnecessary to consider the other'errors assigned. The judgment of the court below is reversed, and the cause remanded for further proceedings according to law.

Reversed.