Bartlett v. City of Bangor , 67 Me. 460 ( 1878 )

Walton, J.

First street in the city of Bangor, as originally laid out, in' 1829, by the then owner of the land, extended southwesterly from Union street to Cedar street, and across Cedar street into the adjoining territory, as indicated upon the diagram.

That portion of First street lying between Union and Cedar streets was laid out and accepted by the city in 1836. That portion of it lying southwesterly of Cedar street was laid out and accepted by the city in 1875. The only question is whether the owners of the land thus taken for the extension of First street, in 1875, are, under the circumstances stated in the report, entitled to more than nominal damages. We think they are not.

When the owner of land within or near to a growing village or city divides it into streets and building lots, and makes a plan of the land thus divided, and then sells one or more of the lots, by reference to the plan, he thereby annexes to each lot sold a right of way in the streets, which neither he nor his successors in title can afterwards interrupt or destroy. And we think reason and the weight of authority are in favor of holding that such a platting and selling of lots constitute an incipient dedication of the streets to the public, which the owner of the land cannot afterward revoke. The dedication is not complete, and will impose no burden upon the public, till the streets are accepted by competent authority, or the public has used them for at least twenty year’s. But so far as the owner of the land is concerned, such acts constitute a proposition to dedicate, which he cannot afterward withdraw. Platting alone will have no such effect; but platting and selling will. There are dicta to the contrary, but the later and better considered cases hold to this view.

“ H aving sold lots and bounded the purchasers by the street as it is laid dowm upon the map, he has adopted the map, and dedicated his land in the site of the street to the public use ; he could have intended nothing less by his deeds than a declaration that the street was, and, so far as he was concerned, should remain, a public highway.” Judge Bronson, in the Matter of 29th Street, 1 Hill. 189, and 39th Street, 1 Hill. 191. It is not important that the street has not been opened. Matter of 32d Street, 19 Wend. 128. And the right of way cannot be released by purchasers, because tlie public have a vested interest. Wyman v. Mayor, etc. of New York, 11 Wend, 486, 487.

“ Tlie general rule is that, where the owner of land in a city lays out a street through it and sells lots on each side of the street, the public have an easement of way or right of passage, although it may not become a public highway in the ordinary sense of' that term until the dedication is accepted and the street adopted by the corporation; and the grantees of the lots are entitled as purchasers to have the interval or space of ground left open forever as a street, and to the right of using the way for every purpose that may be usual and reasonable for the accommodation of tlie granted premises. Neither the city, nor the state, nor the grantor, can do any act to impair this right, or restrict the grantees in the enjoyment of it.” Opinion of the court in White’s Bank of Buffalo v. Nichols, 64 N. Y. 65.

“ While a mere survey of land, by the owner, into lots, defining streets, squares, etc., will not, without a sale, amount to a dedication, yet, a sale ol lots with reference to such plat, or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter, binding upon both vendor and vendee. ... As against the proprietor, a dedication of land for streets and highways may be complete without any acts of acceptance on the part of the public; but in order to charge the municipality or local district with the duty to repair, or to make it liable for injuries for suffering the street or highway to be or remain defective, there must be an acceptance of the dedication ; and this acceptance must be by the proper or authorized local public authorities.” 2 Dill. Mun. Corp. §§ 503-5, citing numerous authorities.

And such a right of way is not lost by mere non-use. An adverse use, such as placing upon the land buildings or other permanent obstructions to all possible travel over it, if acquiesced in for a sufficient length of time, might have that effect. But using the land for pasturage, or the growth of crops, or other purpose, which does not indicate an intention that it shall never be used as a street, will not have that effect. Such a use of the land is not adverse.' It is seldom within the contemplation of the parties that all the streets marked upon a plan of a considerable extent of territory, or that the whole of any one of them, if of considerable length, shall be at once opened. And, until such time as the growth of the place requires them to be opened, the owner has a right to use the land for any of these temporary purposes. And such a use is not adverse, but according to strict right. It will not, therefore, bar the rights of the grantees, or the public, to have the streets opened, whenever, in the opinion of the public authorities, they are needed. Thus, the streets in South- Boston were located and delineated upon a plan in 1803; and a portion of one of them (First street) was not ordered to be opened till 1851; and in the mean time those claiming title to the land, and for more than twenty-five years before the order was passed for opening the street, fenced it and openly and continuously used and occupied it, without interruption; and yet the court held that the right to have the street opened to the full extent laid down upon the plan, was not thereby lost. The court said that the rights of the parties were such that it was impossible that there should be any adverse possession, until an official order was made that the street should be completed. Henshaw v. Hunting, 1 Gray, 203.

Nor will it make any difference that the street in question is a mere cul de sac — a street open at one end only. True, in Holdane v. Cold Spring, 23 Barb. 103, two of the three judges held that such a street could not be a highway. They based their decision on what they supposed to be the common law. But they were mistaken. It had been laid down by Lord Kenyon in Rugby Charity v. Merryweather, 11 East. 376, note, that a mere cul de sac might be a highway; that otherwise such places would be traps to catch trespassers. And in Bateman v. Bluck, 14 Eng. Law and Eq. 69, the question was fully considered, and the court held that it was no objection to a highway that it was a mere cul de sac and not a thoroughfare. And in People v. Kingman, 24 N. Y. 559, the court of appeals very pointedly condemned the decision in Holdane v. Cold Spring, 23 Barb. 103, and held that upon principle as well as authority, it is no objection to a highway, or public street, that it is a cul de sac; that public ways with an outlet at one end only, may and often do exist; that they are quite common in some parts of the country; that in many cities and villages there are short streets leading to ravines, and to cliffs, whence there can be no outlet, and where they must necessarily stop ; that the same thing is true of streets running to unnavigahle waters, or to points on the sea shore, where there cannot be a harbor or landing place ; that in new settlements many of the public ways extending into the wilderness, have outlets at one end only. In fact, we cannot see why it should have ever been doubted that such roads and streets are as much public highways as roads and streets open at both ends.

And where one sells building lots by reference to a plan, the purchasers obtain an interest in all the streets marked upon it, and the right to have them converted into public streets as soon as the public authorities can be induced to do so. To the contrary is the decision in Badeau v. Mead, 14 Barb. 328. It was there held that the purchasers obtain an interest in only so much of the streets as will enable them to reach the highway. And in the Matter of 29th Street, 1 Hill. 189, Judge Bronson said : “I do not mean to say that this dedication will extend to all the grantor’s lands in the site of the street; but it will, I think, extend to all his lands in the same block ; or, in other words, to the next cross street or avenue on each side of the lots sold; the parties must have contemplated an outlet both ways.” But in the Matter of Lewis Street, 2 Wend. 472, the court held that such a conveyance carried with it an implied covenant that the purchaser should have an easement or right of way in the street, to the full extent of its dimensions. And in a recent case in Massachusetts, Fox v. Union Sugar Refinery, 109 Mass. 292, the court held that a conveyance of land bounded by a street not defined in the deed, but shown upon a plan therein referred to, estopped the grantor to deny the existence, not only of that street, but of all the connecting streets laid down on the same plan, as far as the grantor’s land extended; that where a plan is referred to in a deed, for a description of the estate conveyed, not only the courses and distances, but all other particulars, appearing upon the plan, are to be regarded as if they had been expressly recited in the deed. And Judge Dillon says the purchasers’ rights extend to all the streets marked on the plan. 2 Dill. Munic. Corp. § 503, note, citing numerous authorities.

And it has been decided in this state, as well as other states, that when the owner of land makes a plan of it, delineating thereon a street, with building lots adjoining, and then sells one of these lots by a reference to the plan, he thereby secures to the purchaser a perpetual and indefeasible right of way in the street; and that when the land thus already burdened with a perpetual and indefeasible right of private passage over it, is taken for a public street, the owner is entitled to no more than nominal damages. Sutherland v. Jackson, 32 Maine, 80. Stetson v. Bangor, 60 Maine, 313.

In fact, there is no reason for allowing him even nominal damages. Where there is nothing in the deed, nor upon the plan, showing the contrary, the presumption that the streets marked upon tbe plan, are intended for public streets, as soon as tbe municipal authorities can be induced to locate and accept them as such, is as strong as that the grantee shall have a private right of way over them. If such is not the intention of the grantor, it is no hardship to require him to say so in his deed. And we find upon examination that the doctrine of nominal damages originated with respect to streets in the city of New York, where, by force of a statute to that effect, the fee in the streets vests in the city as soon as they are laid out and accepted as public ways. To compensate the owner for this worthless fee, it was considered necessary to allow him at least nominal damages. But where, as in this state, the owner is not divested of the fee when his land is taken for a public way, and the land taken is already incumbered by a perpetual and indefeasible right of private passage over it, there is no reason why he should be allowed even nominal damages. He gets his pay by the increased value of the adjoining land.

In the case now under consideration, it appears that First street in the city of Bangor, was originally marked upon a plan, by the then owner of the land, in 1829; that numerous building lots have since been sold abutting upon the street, and by reference to the plan for a description of them ; that in 1836, a portion of the street was laid out and accepted as a public way; that in 1875, the remainder of it was so laid out and accepted ; and that, for this latter location, the owners of the fee were allowed nominal damages. We think they are entitled to no more.

Appellants entitled to only nominal■ damages. Appeal dismissed with costs for respondents.

Appleton, C. J. Dickerson, Barrows, Yirgin and Peters, JJ., concurred.