Daughters v. Board of County Commissioners

SYLLABUS BY THE COURT. .Dedication op Land — Public Use- — Particular Use not Designated — Legislative Designation. Where the proprietors of a town site, in the recorded plat thereof, designate a block of land simply as “Square,” this designation is sufficient to indicate an intention to dedicate the block to a public use, hut is insufficient to designate any particular public use. The legislature so far represents ’ the public that it may by a proper act designate and determine to what particular public use such block shall be devoted, df no private rights have intervened.

Appeal from Riley district court; Sam Kimble, judge. statement. In July, 1857, the Manhattan Town Site Association located and platted the site of the city of Manhattan, embracing about 1280 acres. At several places on the town site blocks were left not divided into lots, one of which was marked “Market Square,” one “Schoolhouse Square,” and one simply “Square.” The latter is in the first ward and is the one concerning which this action is brought. Lots were sold abutting on the streets surrounding this square, and valuable buildings, principally residences, were erected thereon. It is not alleged, however, whether any of the abutting lots were sold or buildings erected thereon prior to the act of the legislature hereinafter referred to. But in November, 1903, the appellant became the owner of two lots facing this square, upon which there was a dwelling estimated at the value of $6000, which he has ever since occupied as a residence. The residence and improvements thereon were erected in 1890. The legislature of 1867 passed an act vacating the square for a courthouse site. (Laws 1867, ch. 163.) During the same year the board of county commissioners of the county took possession of the square and erected thereon a building which for several years was used in part for a courthouse and in part for a jail. It has been continuously used as a jail by the county ever since that time. Since the year 1889 the court has been held elsewhere than in this building, and in 1907 a new site was procured and a courthouse erected thereon by the county, in which court has ever since been held. In 1907, after the completion and occupancy of the new courthouse by the . county, the appellant brought this action to abate the buildings, etc., on the square as a nuisance. In his petition, after detailing the facts above abstracted, he sets forth his grievance and prayer for relief as follows: “The plaintiff further says that notwithstanding the premises the said board of county commissioners have continued to maintain a county jail and jailer’s residence in the building erected thereon by said county upon said square, wherein prisoners are kept by the sheriff of said county, and maintain a rock pile .upon said square, where such county prisoners are required to break stone, and further that said commissioners have erected a horse barn upon said square, where horses are kept by the sheriff and jailer of said county, and they have erected thereon other outbuildings which they continue to maintain in connection with said jail, and have also for several years kept a broken and tumble-down post-and-board fence around said square, to the exclusion of all the people of said city and of the plaintiff to use said square in the manner intended by its dedication as public grounds, and further that the sheriff and jailer of said county are permitted by said board of commissioners to use said square as a corral for a large number of horses, and said defendants have caused to be destroyed upon said square a large number of valuable shade trees, and they have caused to be accumulated large piles of manure, old bridge lumber and other rubbish upon said square. That said jail building so maintained, and all other buildings heretofore mentioned as erected and maintained upon said square, are roughly constructed, out of repair and unsightly. That all buildings and fences so maintained by said defendants on said square are dilapidated and unsightly. ‘That said defendants threaten and intend to continue the occupation and use of said square as above set out, to the great and irreparable damage of this plaintiff and all the residents and property owners immediately surrounding said square. ‘‘Plaintiff alleges further that the said act of the legislature attempting to vacate' said square for the purpose of a courthouse site for said county was without right, null and void, and gave said county no legal right to occupy said square for jail or any other purposes, and that if said county has ever secured any license or right whatever to ever occupy said square for jail purposes or courthouse purposes by sufferance of the people of said city, and especially of the property owners about said square, or any laches on their part, the same has been forfeited by the abandonment of said square as a courthouse site as aforesaid. Plaintiff further alleges that all the acts of said defendants and each of them in the occupation and uses of said square as herein set out are wholly, unlawful, wrongful, and if allowed or permitted to be continued, will work a great and irreparable damage to plaintiff and all other abutting lot owners about said square. Plaintiff further alleges that he brings this action especially on his own behalf, but also on behalf of all the said owners and occupants of lots immediately surrounding and abutting upon said square, and that they have no adequate remedy at law. Wherefore plaintiff prays that said court grant a temporary injunction against each and all the defendants, prohibiting and restraining them from doing any and all the wrongful acts complained of herein, and that upon the final hearing hereof that each and all the defendants be enjoined and forever barred from all the wrongful acts herein complained of, and that the temporary injunction be made permanent, and a further judgment that all the buildings, fences, etc., so unlawfully constructed and maintained, be removed, and that plaintiff be granted such further relief as he may in equity be entitled to, and that he recover his costs herein.” To this petition the defendants filed a general demurrer, which was sustained by the court, and, the plaintiff electing to stand thereon, judgment was rendered against him for costs, from which judgment he appeals.