Opinion
No. 1668
Decided June 19, 1943.
Real property — Plat of subdivision filed with recorder — Lot designated as playground — Dedication to public — Elements of common-law dedication — Intention of dedicator — Acceptance or user by public — Elements sufficiently established, when.
1. Where an owner of a subdivision files with the county recorder a plat thereof, delineating thereon numerous lots, together with streets and alleys which are duly dedicated to the public, and such plat also contains a numbered lot, designated "Children's Playground," of which there is no specific statutory dedication, the one of two necessary elements of a common-law dedication, i.e., the intention of the dedicator to make dedication, is clearly manifested by delineation of the playground by lines and lot number, accompanied with the use of such terminology, the intention being confirmed, subsequent to the recordation, by such owner circulating printed matter containing the subdivision plat showing the playground as a part thereof, and by his agents' representations to prospective lot purchasers that the playground was a part of such subdivision intended to be used permanently for such purposes.
2 In such case, the other necessary element of common-law dedication, acceptance or user by the public, is sufficiently shown where the weight of the testimony discloses that use of the playground by the public was quite general in the light of the number of persons who could be expected to so use it, the acceptance of the dedication by a public authority being unnecessary.
APPEAL: Court of Appeals for Montgomery county.
Messrs. Thomas, Hyers, Leyland Stewart, for appellees.
Mr. E.E. Duncan and Mr. Mason Douglass, for appellant.
This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas permanently enjoining the defendant from proceeding with the construction of any structure upon, or from exercising private control or enjoying private possession of Lot No. 1 on the Salem Heights plat, Harrison township, Montgomery county, Ohio. The appeal requires the consideration de novo of the case.
The issue is whether the plaintiffs, owners of lots in the Salem Heights plat and representative of the public, have established the common-law dedication of Lot No. 1 in such plat known as "Children's Playground." A record consisting of about 400 pages of testimony, together with exhibits, discloses the factual disputes between the parties as to both elements of common-law dedication, namely, the intention of the dedicator to make dedication of the Children's Playground and the acceptance of such dedication by the public.
The facts develop that on July 14, 1908, the C.A. Wirshing Company, a real estate corporation, duly recorded a plat known as the Salem Heights plat in the office of the recorder of Montgomery county, Ohio. The plat delineated some 400 lots, together with streets and alleys which were duly dedicated. As a part of such plat there was shown a piece of land approximately 250 by 390 feet. There was no specific statutory dedication of this parcel, Lot No. 1, designated "Children's Playground." Succeeding the recording of the plat of the subdivision, the C.A. Wirshing Company promoted the sale of the lots and, as a part of the selling campaign, had struck and circulated folders, dodgers and other printed matter upon which was carried the plat of the subdivision, with numbered lots, streets and alleys, showing thereon the Children's Playground as a part of the subdivision. It also appears and the testimony is undisputed that C.A. Wirshing, the moving spirit in the project, told prospective purchasers of lots and authorized his representatives to state, that the Children's Playground was a part of the subdivision intended to be used for all time for the purposes of a children's playground. The sale of the lots was not completed rapidly and for a number of years there was a hiatus in the development of the subdivision.
In 1924 the defendant, Sherwood P. Snyder, purchased the unsold lots in the subdivision, some 116 lots, together with Lot No. 1. Mr. Snyder testified that the consideration for Lot No. 1. was 3,200 and it, also, appears that he has paid certain back taxes. So that, at the time of the trial, he estimated that he had upwards of $5,000 invested in this lot.
This is a substantial investment but the defendant's rights, except those that may have resulted since his acquisition of the property, rise no higher than those of the grantor, the C.A. Wirshing Company.
It will serve no good purpose to discuss in detail the testimony of the numerous witnesses who appeared for the respective parties in the case, nor to cite authorities as to the law which is not in dispute. We could be well content to accept the opinion of Judge Hodapp which we have before us as it is complete in the discussion of the law and factual developments.
There are but two questions presented, namely, the intention of the C.A. Wirshing Company as respects the dedication of Lot No. 1, known as the Children's Playground, and, if dedication be found, whether user has been established on the part of the public.
We find no reasonable conclusion to be drawn from the facts appearing other than, at the time the C.A. Wirshing Company filed its plat of the Salem Heights subdivision, it then and there intended to dedicate Lot No. 1 as a Children's Playground, as a part of the subdivision, to be used particularly by those purchasing lots in the subdivision and, also, by the general public. This purpose and intention were clearly manifested by the delineation by lines, lot number, and by the term "Children's Playground." The subsequent conduct and acts on the part of the company and its representatives, were confirmatory of the intention manifested by the filing of the plat for recordation. It is obvious that, undenied and unexplained and without some reservation, the purpose to be inferred from the filing of the plat, with Lot No. 1 characterized as "Children's Playground," was that it was so intended to be used and was so dedicated. The argument is that because the Children's Playground was not formally dedicated by express language, it is therefore to be determined that there was a purpose not to dedicate the playground for the purpose indicated. This same argument was advanced in Thompson v. Columbus, 30 O.D. (N.P.), 196, 198, 22 N.P. (N.S.), 33, 36, wherein the court cited Price v. Plainfield, 40 N.J. Law, 608, and Maywood Co. v. Village of Maywood, 118 Ill. 61, 6 N.E. 866, to the effect that "the word `park' written upon a block upon a map of city property indicates a public use; and conveyances made by the owner of the platted land by reference to such map operate conclusively as a dedication of the block."
In the instant case the transfers of lots within the subdivision were made with reference to the plat. Such procedure has without exception been held to amount to dedication to public use. 13 Cyc., 455.
It is urged that the C.A. Wirshing Company exercised dominion over the playground at the time of the dedication of the plat until the transfer to the defendant and as proof of this fact the payment of taxes is established. This one act of dominion appears. However, it is universally held that the levying of taxes or the paying of same is not conclusive but evidentiary of the purpose of the owner of the fee. It is likewise true that this is the only act of dominion exercised by the defendant. It does not appear at any time that any use, other than the beginning of building operations, was attempted by either owner of the lot inconsistent with its full use for the purpose for which dedicated to the public.
It is also urged that Lot No. 1 was and is not suitable for a children's playground. This is a matter of opinion. The topography of the land is the same now as it was when the C.A. Wirshing Company dedicated it for the purpose of a children's playground. Many better places for organized play no doubt could have been chosen, but the dedicator made selection, maybe because of its terrain. That the ground is precipitous, in places somewhat hazardous, may be determined not only from the record and probably from an inspection of the land but the plat, made an exhibit in the record, is specific in showing by numerous markings that the playground was hilly. In fact, the characters employed are those commonly used on maps to indicate mountainous country. It is apparent that the lot is not suitable for organized play such as would be carried on upon level ground because there is very little of level space upon the lot.
The second question, namely, that of user, is not demonstrated as clearly as is the intention of the dedicator to dedicate the lot to public use. However, it must be observed that this subdivision, when platted, was outside of the city limits of Dayton in open country, sparsely settled. This did not affect the right of the C.A. Wirshing Company to effect dedication of the playground. Iowa Loan Trust Co. v. Board of Supervisors, 187 Ia., 160, 174 N.W. 97, 99, 5 A.L.R., 1532. It was the purpose of the C.A. Wirshing Company to develop this land and by stimulation of sale of lots and the erection of dwellings upon them to build up a considerable population upon the subdivision. At this juncture, it might be said that it is probable that the C.A. Wirshing Company did change its mind as to a purpose to dedicate years after the dedication was completed. The difficulty with this change of purpose is that it came too late and after rights had vested.
The user of the playground was such as was proper upon a piece of wild, woody land in which there were precipitous places and some ravines.
The testimony of some twenty witnesses on behalf of the plaintiffs is convincing, that the use of the playground was quite general in the light of the number of persons who could be expected to so use it. Many testified to having throughout the years frequented the ground for the purposes of play and they, also, named and designated groups of children who did likewise. This affirmative testimony is more satisfactory than the negative testimony of the witnesses on behalf of the defense, who either said that they themselves had not used the ground for play, or, that they did not understand that it was a public playground.
We have noted that no public authority, either the township trustees or the county commissioners, who would normally supervise this playground, has manifested any purpose to exercise control over it or to insist upon any right of the public to use it. This has been somewhat disconcerting as affects the future use and maintenance of the playground but such action is not at all determinative of the question whether the ground has been accepted by the public.
"An offer of dedication, to bind the dedicator, need not be accepted by the city or county or other public authorities, but may be accepted by the general public. To deny this would be to deny the whole doctrine of dedication." 26 Corpus Juris Secundum, 99.
The proof established by the plaintiffs in this case appears under all the circumstances to require this court, as did the Common Pleas Court, to hold that the user by the public has been established.
Judgment is rendered for the appellees as prayed.
Judgment for appellees.
BARNES, P.J., and GEIGER, J., concur.