Giles v. Ortman

1. Actual Possession; What Facts will Prove. Proof that a party was using a lot to keep his wood and buggy on, that he had dug a trench on it for a wall, and that he had dug out in front of it for an area, is sufficient to sustain a finding that he was in actual possession of the lot. 2. Finding; Powers of Officers; Evidence to Sustain. Proof that certain officers of an association have done an act which is within the scope of the powers ordinarily conferred upon such officers, is, in the absence of any testimony tending to show a limitation of their powers, sufficient to sustain a finding that the association did the act. 3. Streets and Alleys; Pedication to Public Use; Proof of. Where it is proven that parties, preparing a plat of a town for acknowledgment and record, intended to lay out a certain strip of ground as an alley, and thus dedicate the same to the use of the public, and took certain steps to carry that intention into effect, very slight testimony will sustain a finding that such dedication was in fact made. 4. Action to Quiet Title; Interestof Plaintiff. A party in actual and lawful possession of real estate may, under Section 594 of the Code, maintain an action against any person who claims an interest therein for the purpose of determining such adverse interest.

Error from Shawnee District Court. Action brought by Ortman to quiet his title to a certain lot in the city of Topeka, designated in his petition as “ Lot 169 on Kansas Avenue,” and having a frontage on said avenue of twenty-five feet. The case was tried before A. L. W., judge pro tern., at the June Term 1869, and judgment was given quieting Ortman’s title to the north twenty feet, leaving Giles’ title or claim to the south five feet undisturbed. From the findings of fact and bill of exceptions it . appears that the “Topeka Association” was organized in 1854; that. in 1854 or 1855 said association laid off and platted its grounds into lots, blocks, streets and alleys, called the city of Topeka; that on said plat the north twenty feet in controversy were platted as and for an alley, and the south five feet were included in the lot adjoining on the south; that said association caused their lands to be re-platted in 1856, and the plat thereof to be lithographed; that on said lithographed plat the whole twenty-five feet in controversy were designated as lot “169;” that said lithographed plat remained unchanged until March 30th 1859, when the president of said association, by the direction of a majority of the trustees, and with the intention to make room for an alley twenty feet in width, erased or run the mark of a pen through the figures “169” on said .lithographed map, and thereupon said map was certified, acknowledged and recorded; that in 1865 said association conveyed said south five feet to Thomas H. Swope; that in 1866 the city of Topeka by ordinance, and for a valuable consideration, relinquished to said Swope all its right and title to said north twenty feet; that Swope sold the whole of said twenty-five feet to Ortman, describing the same as “ lot 169,” and that in 1867 the city of Topeka deeded by quitclaim all its interest in said Uot 169” to. Ortman; that Ortman owned and occupied the lot adjoining said premises on the north, and after purchase from Swope he kept his wood and buggy on said twenty feet and built a sidewalk along the front thereof. It also appears, that said twenty-five feet were assessed in 1861 as “lot 169,” and sold in 1862 for the nonpayment of taxes levied thereon for said year 1861, and that on the 11th of June 1864 a tax deed for said lot was duly executed to Giles for said lot; that said deed was duly recorded, and that Giles had paid all the taxes assessed on said “lot 169” from 1860 to 1867, and that this action was commenced in February 1868. The court found as conclusions of law, that “from about the middle of December 1857 until the 11th of April 1866, said north twenty feet was an alley of the city of Topeka, duly dedicated to the public use;” that said twenty feet during said period of time was not subject to taxation, and that as to said twenty feet the tax deed under which Giles claimed was void; and, finding that Ortman was in possession and occupancy, gave judgment quieting his title to said twenty feet. Both parties excepted to the findings and judgment. Ortman brought the case here on error, (9 Kas., 324,) objecting to the judgment because it did not adjudge Giles’ claim to the south five feet void, and quiet his {Ortman’s) title thereto; but this court affirmed said judgment. Giles now brings the case here by petition in error, complaining of so much of said judgment as gave to Ortman any part of the premises in dispute. 1. The court erred in finding that Ortman was in the possession and occupancy of the lot. The only evidence tending to prove possession and occupancy is, that after getting his deed from Swope he used the lot for keeping his wood and buggy on, that he built a sidewalk on Kansas avenue in front' of the lot, that he dug a trench on the same for a wall and filled up in front to bring the said walk to the grade, and dug out in front for an area, and paid taxes on same in' 1868. "We do not think this evidence was sufficient to authorize or •warrant the court in finding that Ortman was in the possession and occupancy of the lot. To constitute possession and occupancy there must be an actual, continued, visible, notorious and distinct possession, under a claim or color of title prima fade valid, and it must be of such notoriety that the owner of the land may be presumed to have notice of it. 6 Serg. & Rawle, 21; 2 Johns., 230; 3 Mete., 125; Tyler on Eject., 870. • 2. The court erred in finding, that from about the middle of December 1857, and until the 11th of April 1866, the north 20 feet front, by 130 deep of the property known as lot 169, was an alley of the city of Topeka. This finding is material. If correct, it forms the only basis of Ortman’s title to the 20 feet of land in dispute. If incorrect, then he had no color of title, and cannot recover jn this action. The court finds.that up to the 30th of March 1859, at which time the erasure was made, the map had been and was adopted by the association as its plat or map of the city, with the property in dispute regularly platted and numbered as lot 169. The evidence further shows that the erasure of “169” was done by the president of the association at an informal meeting of the board, and without consulting the members of the association, which at that time contained 100 members; and while there was evidence that the intention was to provide for a twenty-foot alley, it shows that no record was made of the matter, and no disposition made of the remaining five feet of the lot. Upon this evidence the court finds that the erasure was legal, being duly authorized, and by that means the north 20 feet front by 130 deep of the property known as lot 169 became and was an alley of the city of Topeka. It may be true as found by the court that the erasure was authorized by the verbal consent of a majority of the directors of the association; yet this by no means proves that the trustees or directors had authority to direct or assent to any such change or alteration of the map: and we insist that there was no evidence tending to show that these trustees or directors had any such authority. There was no act of incorporation or by-laws of the association showing that they had this authority. How then could the court infer from this evidence that this act of the president was authorized and legal ? But even if it can be inferred from the evidence that these trustees or directors had authority to change the plat of the city as adopted by the association, did the act of drawing a pen through the figures designating the number of the lot, without making any record of the same on the books of the association, or any note of it on the map, make an alley of the north 20 feet of the lot, and thereby dedicate the same to the public? We think not. There are but two modes of dedication — 1st, statutory dedication; 2d, common-law dedication. Statutory, dedications are made only by pursuing substantially the course prescribed by the statute, which required the proprietor of the city or town to make out an accurate map or plat thereof, particularly setting forth and describing all the parcels of ground within such city or town reserved for public purpose by their boundaries, course, and extent, whether they be intended for avenues, streets, lanes, alleys, etc. Comp. Laws 1862, ch. 24, §§1 to 11. We claim that there was no dedication of this ground for an alley as required by statute, and no common-law dedication, because there was no evidence that the public ever used or occupied it. Dillon on Municip. Corp., 476, 478. 3. Ortman does not show any title in him to the property whatever. If the property in controversy was an alley, the city of Topeka had no authority to dispose of it. (See Dillon on Munic. Corp., 495, and authorities there cited.) If the property was not an alley, then it was subject to taxation as lot 169, and the tax deed conveyed a good and sufficient title to Giles for the whole of the lot, and the court erred in giving judgment in favor of Ortman for the north 20 feet thereof. This case we supposed was fully disposed of in the case of Ortman v. Giles, 9 Kas., 324. We think the court below erred in not giving Ortman the whole of lot 169. The record shows he was the owner of it, and in possession at the time the suit was commenced, and that the lot was in the years 1860 and 1861, when the taxes were assessed upon it, an alley as to 20 feet, and then unknown as lot 169; and we can only say in this case, as we did in the other, that the description was defective, and the tax deed was therefore void. Blackw. Tax Titles, 123 to 127. When a part of the land ■sold is liable to sale and the residue is not, the sale is void. Blackw., 280 to 282.