Opinion
No. 29677.
January 18, 1932.
1. DEDICATION.
Evidence warranted chancellor's holding that city never accepted street on which complainant's house was located.
2. DEDICATION.
City had no rights to part of street upon which complainant's house was situated, where it had never accepted street.
3. LIMITATION OF ACTIONS.
Abutting property owners' right to ingress and egress through street which city had not accepted was subject to statute of limitations.
4. LIMITATION OF ACTIONS.
Abutting property owners' right to ingress and egress through part of unaccepted street occupied by building was barred within ten years from erection of building.
5. MUNICIPAL CORPORATIONS.
One buying according to street on map, where dedication is not accepted, acquires only right of ingress and egress to his property and to public highway therefrom.
APPEAL from chancery court of Forrest county. HON. T. PRICE DALE, Chancellor.
R.W. Heidleberg and Currie, Stevens Currie, all of Hattiesburg, for appellants.
The rule has obtained general sanction, that, if the owner of urban property has laid it off into lots intersected by streets, and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets and alleys, such action will amount to a dedication of the streets and alleys to the public.
Briel v. City of Natchez, 43 Miss. 433, 435.
To consummate a dedication, there must be also an acceptance, either by the formal act of the local municipal authority, or it may be inferred or implied from sufficient circumstances. It is not necessary that there should be a user, following closely upon the dedication. The city should not be held to have relinquished the easement and abandoned its acceptance of the dedication.
Briel v. City of Natchez, 43 Miss. 433.
It is not necessary to a valid dedication that the property should be within the corporate limits of the City at the time of the making of the map. Dedication of land to a city for street purposes and acceptance thereof by the city were not negatived by the fact that the land remained as part of an old field and that the municipal authorities did not presently open a street over the same; the city being entitled to postpone the actual use of the land until advancing population and private improvements made the same necessary.
City of Meridian v. Pope, 40 So. 458.
The survey and sales of lots, with reference to streets in a tract of land adjoining a city, which is laid off into squares and streets by the owner for this purpose, is a dedication of the streets as described in the plat, which purchasers of the lots according to that description, cannot controvert, although the plat is not enrolled until after the sales.
City of Vicksburg v. Marshall, 59 Miss. 563.
Where property in a city is deeded as a "block" in a certain "survey," and is described as bounded by streets, and the recognized maps of the city show streets and avenues around the block, other evidence of a dedication of the streets is not necessary, in an action between property owners and the city, involving the boundary line of the street.
Witherspoon v. City of Meridian, 13 So. 843.
A public street cannot be lost, and become private property, by mere occupancy for the time prescribed to bar actions for land held adversely.
Vicksburg v. Marshall, 59 Miss. 563; Witherspoon v. City of Meridian, 13 So. 843.
Where an owner impliedly dedicates a strip of land for a street by platting his land into lots and streets, making a map thereof, and selling the lots as divided on the map, the fact that the city for a period of ten years used only a portion of the land designated as a street did not deprive it of the right to use the entire strip for a street, when necessary for the convenience of the public.
Indianola Light, Ice Coal Co. v. Montgomery, 37 So. 958.
Limitations do not run against a municipality by reason of mere adverse possession.
City of Lexington v. Hoskins, 50 So. 561; Constitution of 1890, sec. 104.
A map or plat filed and recorded in substantial compliance with the law constitutes a complete statutory dedication.
Burchfield et al. v. Town of Ruelville, 111 So. 565.
The statutes of limitations do not run against the state or any subdivision or municipality. The fact that deeds were given and executed and lands were sold in pursuance of the map, and the making of the map amounted to a dedication of the property as a street.
City of Ellisville v. Webb, 117 So. 836; City of Yuba City v. Consolidated Mausoleum Syndicate, 279 P. 427, 66 A.L.R. 318.
The lapse of thirty-one years is not sufficient to affect the rights of the City to claim land shown on a plat as a street.
R.W. Heidleberg, of Hattiesburg, for appellants.
Attorneys for appellant interveners have so fully covered the law of this case in their brief, that I will not burden the Court with any repetition thereof or additional argument on behalf of the City of Hattiesburg, simply contenting myself with adopting the brief of these attorneys as setting forth the law applicable to the case, insofar as the rights of the City of Hattiesburg are concerned.
Hannah Simrall, of Hattiesburg, for appellee.
There are two kinds of dedication which may be made of a public street through the making of a map or plat showing lots, blocks and streets. The first of these is a statutory dedication made through compliance by the owner of the land with the statutes of the state of Mississippi and the ordinance of the City of Hattiesburg in regard to the making of maps.
Sections 7149, 7150, 7151, 7152 of the Code of 1930.
Section 2405 of the Code of 1930 and the ordinance of the City of Hattiesburg appearing in the record point out the statutory requirements for the adoption of a map as a public plat of the City of Hattiesburg.
A common law dedication is well defined as "the gift of land by the owner for a public use and an acceptance of the gift by the public, either express or implied, from obvious acts of persons competent to act for the public.
8 R.C.L. 881, sec. 2.
It may be safely laid down as a general rule that acceptance, in some form or other, is essential to a complete dedication.
8 R.C.L. 898, sec. 22.
A dedication of a street, like every other conveyance of property, requires two parties — a grantor and a grantee. The one must accept and the other convey. The acceptance is evidenced either by the action of some civil authority representing the public or by a purchase of lots by private persons, based upon the dedication, or by some use of the property by the public, which implies an acceptance and stops the grantor.
Sanford v. Meridian, 52 Miss. 383.
The mere making of a map of one's own land, on which streets and squares are shown, followed by no dealing with the property by the owner or the public in reference thereto, is certainly not a dedication of the streets appearing thereon.
Whitworth v. Berry, 69 Miss. 882.
The evidence must unequivocally manifest an intention on the part of the alleged dedicator that the public shall have and enjoy the way claimed, and likewise there must be the same character of acceptance of the way by the public.
Hainer v. Heidenreich, 142 Miss. 65, 107 So. 196.
Acceptance may be formal or it may be implied, but it is settled in our state that mere user by the public without more, is not sufficient to constitute an implied acceptance.
City of Columbus v. Payne, 124 So. 269.
The appellee, Mrs. Fogel, filed a bill in the chancery court of Forrest county against the city of Hattiesburg alleging that on October 21, 1913, she acquired title by warranty deed to certain property in Hattiesburg, described as lot 38, and a strip of land five feet wide adjacent to the said lot on the east side of lot 39 in block 171 of the D.H. McInnis first survey of the city of Hattiesburg. She deraigned title through J.L. McGregor, S.B. Rich, and D.H. McInnis to the United States government. The bill also alleged that at the time she bought the house and lot in 1913 the house was situated where it now is, and that she bought on boundaries pointed out at the time, showing the house to be on the lot described in her deed. She set up that the city of Hattiesburg had never accepted or exercised ownership of Brunie street of the D.H. McInnis survey, and that part of her house was actually situated on territory shown on the map to be in Brunie street. She further alleged that the house which she occupied had been built many years before she bought it, and during all the time had been located where it is now. She alleged that by reason of the fact that no minutes had been made of the acceptance of the survey, and that no improvement had ever been made on the said street, the city of Hattiesburg was without right thereto, and prayed for the establishment of her title to the property upon which her house is situated, and that all claim of the city of Hattiesburg thereto, if any, be canceled.
Certain property owners of the city of Hattiesburg, whose property abuts on the alleged Brunie street, intervened in the suit as defendants, setting up that, as citizens and taxpayers of the city, they were interested in having said street maintained, and that they had, as property owners, special interest in the said street.
It appeared that the D.H. McInnis survey was made in December, 1895, and that on the map so filed was laid off a street known as Brunie street, which was thirty-eight feet wide and extended from Forrest street to Pine street; that across this street there runs a stream or creek, and, on account thereof, the street is not traversable without being improved or bridged. At the opposite end of Brunie street from the complainant's residence are two filling stations, one on either side of the street, with a wash rack in the alleged street. The street has never been worked by the city or laid open for travel.
On June 6, 1894, the city adopted an ordinance providing conditions upon which plats and maps of subdivisions should be made in the city. It was therein provided, "that any person desirous to subdivide a tract of land within the corporate limits of said town or to be included therein shall be required to submit a plat and map of such subdivision made by a civil engineer, surveyor or other competent person, and a correct abstract of titles of the land so platted to the mayor and board of aldermen of said town of Hattiesburg, to be approved by them before the same shall be filed for record in the records of deeds of the county of Perry, state of Mississippi," Hattiesburg at said time being in Perry county. The ordinance was made to take effect from its passage.
The testimony showed that the records of the city had been examined, and nowhere could be found any order accepting the said map or the said street, nor was there anything to show that any abstract of the title had ever been filed with the city. There was no ordinance accepting the street so dedicated in the minute books of the city, nor any minute thereof. Some time before the suit was filed, the city desired to put down some sewer pipe lines in this territory along the alleged Brunie street, and, there being doubt as to whether the city owned the street or had any right thereto, the question was taken up with the property owners who did not object to the proposed work being done and made no claim for damages; and the sewer pipes were laid in this alleged street and a map thereof was made. Subsequent to the making of the D.H. McInnis map, which had in fact been placed on record of maps in Forrest county or Perry county as it then was, and on which the acknowledgment and filing date had been torn off, certain subdivisions of the D.H. McInnis survey were made, accepted, filed for record, and approved by ordinances of the city. These maps showed Brunie street, but Brunie street was not a part of said subdivisions, and these were made after the building involved in this suit had been erected, occupying part of the said alleged street.
It was further shown on behalf of the defendants that abstractors had used the D.H. McInnis map, and from memoranda made in abstracting it was shown that the map was filed in December, 1895.
The chancellor held that the city had no rights to the property upon which the complainant's house was situated, it having never accepted the said street, and granted the relief prayed for by the complainant.
Under the facts stated, we are of the opinion that Brunie street had never been accepted as such by the city of Hattiesburg. It had never been used or improved as a street, and no record or matter showing any acceptance of the dedication existed. It is clear that the city could not be held for any liabilities for failure to maintain the said street, and the street, in the condition it was when the map was made and up to the present time, could not be traveled and used without improvements by the city. We are therefore of the opinion that the chancellor was warranted in holding that the city had never accepted the street, and consequently the city had no rights therein.
The intervening parties as abutting property owners did have a right to ingress and egress through the said street, but this right, the city not having accepted the street as such, would be subject to the statute of limitations and would be barred within ten years from the erection of the building in the said street so far as that part of the street occupied by the complainant's residence was concerned. A property owner buying according to streets and alleys on a map dedicating it to the public, where the dedication has not been accepted by the public authorities, only acquires the right of ingress and egress to his own property and to a public highway from his said property. This right is a personal and private property right different from that of the general public manifested by an acceptance and use on the part of the public authorities.
This case is unlike the cases of City of Meridian v. Poole, 88 Miss. 108, 40 So. 548; Indianola, Light, etc., Co. v. Montgomery, 85 Miss. 304, 37 So. 958, and Briel v. City of Natchez, 48 Miss. 423.
We are therefore of the opinion that the judgment of the court below should be affirmed.
Affirmed.