SUPREME COURT OF THE TERRITORY OF WASHINGTON
December, 1867, Decided
ERROR to Second Judicial District.
Court: Judgment reversed.
Syllabus: The board of trustees of Olympia had the right to
vacate the alley in block 13, upon a petition of all the
lot-owners in said block, and upon a compliance of the
requirements of the statute.
Upon a vacation of the alley, under both the common and the
statute law, the fee to the soil of the same vests in equal
proportions in the owners of lots abutting on both sides of
the alley, but if a different disposition was made by the
ordinance, upon a petition of all the lot-holders, then
these lot-holders and their grantees are estopped from
setting up any right in contravention of said ordinance.
By the acts of the lot-owners, seven feet from off the lots
fronting on Main Street have been dedicated to the public,
and the trustees had the power to make the replatting of
block No. 13, in this case, and after this was done, and
rights acquired under this replatting, the owners of lots
who petitioned for this replatting and their grantees are
estopped from questioning rights so acquired.
The action under our statute to recover the possession of
real estate, not an action to try merely the abstract legal
fee to the soil, but to determine who is entitled to the
possession, and, therefore, the holder of the naked fee may
not recover possession, if by his acts the equitable title
be in the adverse party.
The ordinance of March 3, 1860, moved the west half of block
No. 13 seven feet eastward, and the lines and corners of the
block moved with the block, and all lines and corners
mentioned in deeds subsequent to the change of the block
will be considered the lines and corners fixed by the
ordinance, and not as they formerly existed.
And so in this case, beginning the measurements of the
parties from the corners as fixed by the ordinance, and
there is no conflict in the description of their several
deeds, and no part of the land conveyed in one deed is
conveyed in the other.
The power of municipal corporations, to be strictly
construed and closely pursued, but within the scope of their
authority, their ordinances have the force of statutes, and
all persons to be affected thereby must take notice of the
same, and so the parties here are charged with notice of the
ordinance, and take their rights under their deeds, charged
with the legal and equitable rights flowing from the
ordinance.
Judge(s) Opinion by WYCHE, Associate Justice.
Opinion By: WYCHE
Opinion by WYCHE, Associate Justice.
The right to a strip of land, fronting seven feet on Third
Street, and extending back sixty feet, and being a part of
lot 2 in block 13, on the plat of the town of Olympia, was
the matter in controversy in the court below. Title in both
parties is derived through Edmund Sylvester, who is the
patentee of the land, and who laid off and platted that
portion of the town of Olympia embracing the land in
dispute.
The plaintiffs in the court below instituted suit to
recover the possession of this strip of land, and, in
support of their right, presented to the court the following
evidences of title, viz.:--
1. A deed, of date of August 4, 1859, from Edmund
Sylvester and wife to Wm. Cock, conveying a part of lot No.
2, in block 13, according to the town plat, and more
particularly described as follows: "Commencing at the
northeast corner of said lot, running thence west on Third
Street forty feet; thence south sixty feet; thence east
forty feet, to an alley; thence north along said alley sixty
feet to the place of beginning. "
2. A deed of conveyance, of March 23, 1866, from Wm. Cock
to Alexander and Rebecca Howard, the plaintiffs below, of
the same premises, with like words of description.
The defendant in the court below set out in his answer the
following evidence of his title:--
1. A deed from E. Sylvester and wife, of date July 20,
1857, to Wm. G. Dunlap and Enoch H. Wilson, conveying
certain lands, in the following words of description: "North
half of lot No. 1, in block No. 13, and a part of lot No. 2,
in block No. 13, measuring sixty feet in the direction of
Main Street and twenty feet in the direction of Third
Street, making in all a parcel of land sixty feet on Main
Street and eighty feet on Third Street, as laid down on the
plat of Olympia."
2. A deed from William G. Dunlap, of date May, 1862, to
Enoch H. Wilson, conveying the last described lot of land in
the following words of description: "Beginning at southeast
corner of Main and Third streets, thence east on line of
Third Street, eighty feet; thence south, parallel with Main
Street, sixty feet; thence west, parallel with Third Street,
eighty feet; thence along Main Street to the place of
beginning, the same being the north half of lot No. 1, in
block No. 13, and part of lot No. 2, in block No. 13, on the
plat of Olympia."
3. A deed from Enoch H. Wilson, of date March, 1865, to
Charles H. Burmeister, the defendant below, conveying the
lastnamed premises, and with like words of description.
4. As an additional link in the defendant's chain of
title, the defendant set up the acts and doings of the
property-holders in said block No. 13, and the acts and
ordinances of the town of Olympia touching the same. The
facts of this matter as they appear in this court would seem
to be these: Block No. 13, as originally laid out and
platted, had a ten feet alley extending north and south
through the center of the same; and on November 30, 1859,
all the property owners in said block, and among the number
Wm. Cock, the grantor of Alexander and Rebecca Howard, the
plaintiffs below, petitioned the Olympia "board of trustees"
to vacate said alley, and to annex the west seven feet
thereof to the owners in that block fronting on Main Street,
and to divide the remaining three feet equally between the
lot-owners on both sides of the alley, alleging as a reason
that the alley was of little or no use, and that the owners
of lots fronting on Main Street had given off to the street
seven feet from their fronts to widen said street, and that
these lots were thereby inconveniently reduced in size; and
on the 30th of March, 1860, the board of trustees passed an
ordinance vacating the west seven feet of the alley, and
declaring the same should be annexed to and belong to the
owners of lots fronting on Main Street who had dedicated
seven feet from off their fronts to widen Main Street, and
directing the clerk of the board to so change the plat of
the town as to show the said vacation of ground, and to so
move the lines of the said respective lot-holders as to
conform the same to the vacation and annexation therein
ordered; and it was further provided, that all town plats
showing alleys and boundary lines on said block inconsistent
herewith are declared vacated, and must be made to conform
hereto; and as for some reason no disposition was made of
the remaining three feet of the alley, the board, by
ordinance of date April 10, 1862, disposed of the same by
vacating the alley and annexing the three feet equally
between lot-owners on both sides of the same, and directing
a like change to be made in the plats and lines as to
conform to the plat of block 13, as then fixed by ordinance.
On the trial of the cause below, the plaintiffs therein,
by motion and demurrer, for reasons stated in the same,
asked the court to strike out all these matters touching the
acts of the board of trustees from defendant's answer, and
the court having so ordered, the parties were heard solely
on their several and respective deeds of conveyance, and
judgment was rendered thereupon in favor of the plaintiffs
below, and the defendant below having properly accepted to
the ruling and judgment therein, brings now the same to this
court for review.
In the view of the court, the determination of the powers
of the board in the vacation of the alley in question, and
the disposition made of the soil, dispose of this case. The
powers of incorporated towns in the vacation of lots,
streets, alleys, commons, etc., and in the disposition of
the soil, to be thereupon made, are defined in the acts of
the 5th session, pages 27 and 28. In this case, it would
seem reasonably clear that the board had the right, upon a
presentation of a petition of all the lotowners in the
block, and upon compliance with the requirements of the
statute thereto, to consider and move in the matter of the
vacation of said alley; and their right of vacation has not
been questioned in this court, and we will proceed to
consider their action in the premises, and to state the
principles of law thereto applicable.
It may be premised that the defendants in error assume
that every conveyance of real estate, or any interest
therein, must be by deed, and that the plaintiff in error
could show no title otherwise acquired. True, the statutes
provide for the conveyance of real estate by deed, but do
not contemplate that title to the same can be acquired in no
other way, and among the other methods recognized by the
statutes are, by will, descent and dedication. The case
referred to by plaintiff in error's counsel ( City of
Cincinnati v. Lessee of White, 31 U.S. 431, 6 Peters 431, 8
L. Ed. 452) will be found interesting as discussing the law
of dedication, and shedding much light on this case. The
doctrine of easements, as applicable to highways, has
received from defendants in error's counsel a thorough and
healthy exposition, and the views urged are accepted by the
court as law, they being in substance, that when an easement
is taken as a public highway, the soil and freehold remain
in the owner of the land encumbered only with the right of
passage in the public; and upon a discontinuance of the
highway, the soil and freehold revert to the owner, and in
the case of streets and alleys, the proprietors of adjacent
lots own the soil to the middle of the street, subject only
to this right of passage in the public; and upon a
discontinuance of such street or alley, the adjacent owners
of lots on each side take the soil to the middle of the
street. So, too, the doctrine urged that municipal
corporations cannot go beyond the authority conferred by
statute, and acts beyond this are void, and that their
powers are to be strictly construed, and closely pursued, is
accepted by the court as a correct exposition of the law;
and so if the plaintiff in error recovers, his recovery must
be in accordance, and not in conflict with these accepted
legal principles.
The third and fourth sections of the Statutes of 1857-58,
pages 27 and 28, provide for the disposition of the soil, in
the case of the vacation of streets and alleys, and declare
that if a street or alley be vacated, the same shall be
attached to the ground bordering on such street or alley,
and all right or title thereto shall vest in the person or
persons owning the property on each side thereof in equal
proportions.
If, therefore, the petition to the board of trustees had
asked only for the vacation of the alley, and had there
stopped, and the board had vacated the same, the disposition
of the soil must have been in accordance with the statutes;
and the matter for consideration is, does the asking in the
petition for a different disposition of the soil open the
door for the introduction of some other principle of law? By
our statute (sec. 2, p. 26, Laws of 1857-58), Edmund
Sylvester, in making the plat of the town of Olympia, is
considered as making a quit-claim deed to the public to the
streets and alleys, and by the laws of Oregon, heretofore in
force in this Territory (sec. 2 p. 260), he is considered as
making a warranty deed; and so, for the purposes of this
case, it is immaterial under which statute the matter be
considered. As the law provides that the soil on the
vacation of streets and alleys shall go in equal proportions
to adjacent lot-owners, the city holds the title in trust
for the public and these lot-holders; that is to say, holds
it to the end that the public may use the streets and
alleys, and upon the discontinuance, to vest the soil in
these lot-holders. In this case, when the city proceeded to
vacate this alley, the lot-holders, who had certain rights
under the law, came in and surrendered these rights, and
asked what disposition might be made of the vacated alley
which the ordinance makes, and in the opinion of the court,
their action operates as an estoppel, precluding the owners
of the lots and their grantees from asserting rights in
contravention thereof. ( Carver v. Jackson ex dem. Astor, 29
U.S. 1, 4 Peters 1 at 83, 7 L. Ed. 761, et seq.; City of
Cincinnati v. Lessee of White, 31 U.S. 431, 6 Peters 431,
438, 8 L. Ed. 452.) If the position be conceded, however,
that the trustees had no authority to vest the legal fee as
the ordinance does, and that in law the title is in adjacent
lot-owners in equal proportions, yet the equitable title may
be otherwise, and the owner of the legal fee may have done
some act so vesting that equitable title, and so preventing
him from obtaining possession by the assertion of this fee.
"For should it be admitted that the mere naked fee was in
the lessor of the plaintiff, it by no means follows that he
is entitled to recover possession of the common in an action
of ejectment" ( City of Cincinnati v. Lessee of White, 31
U.S. 431, 6 Peters 431, 8 L. Ed. 452); and the court in the
same case say: "The purpose for which this action is brought
is not to try the mere abstract right to the soil, but to
obtain actual possession." Therefore, whenever the owner in
fee does an act which in equity gives possession to another,
his naked fee will not carry him into possession over this
outstanding equity. But there is another view of this case,
and probably the leading one, and the case should be
determined here under this view, perhaps, rather than under
the disposition of the soil of the alley by the ordinance,
though the two questions are somewhat blended, and may be
considered as constituting in some sense only one question.
It will be seen, by reference to the petition and
ordinance, that block 13 was replatted, and the street
lines, corners, and alleys ordered so changed as to conform
to the replatting. Now a reference to the powers of the
trustees will show that this action was legitimate, and the
petition and ordinance will show that this replatting was
ordered to be as asked by all the lot-owners in block 13.
After this replatting of block 13, and individual rights
acquired with reference to it, the owners of lots and their
grantees are estopped from questioning these rights, and
cannot compel parties acquiring rights subsequent to this
replatting to go back and interpret and determine their
rights under the old platting, but their rights are to be
determined and interpreted by the new platting. The
ordinance of March 3, 1860, took up the west half of block
13, and carried it seven feet eastward, and set it down, and
in this migration of the block the lines and corners did not
drop out and adhere to their original positions, but
traveled with the block, and so a chain drawn around the
block where the ordinance left it will mark its lines and
corners, and not one drawn around the place from which the
block was taken. Flowing from this proposition is the fact
that lines and corners mentioned in deeds made subsequent to
this replatting will be understood as the lines and corners
established in the block as now platted, and not as the
block was; and so in this case, when the deed of Wilson to
Burmeister, of March, 1865, says "beginning at the southeast
corner of Main and Third streets," that corner will be
considered where the ordinance fixed it, and not seven feet
in Main Street where it once was, and so running east on a
line of Third Street, eighty feet from the true corner, will
give Burmeister all the land he claims; and so when the deed
from Wm. Cock to Alexander and Rebecca Howard, of March 23,
1866, says, "commencing at the northeast corner of said lot,
running thence west on Third Street forty feet," that corner
will be as fixed by the ordinance, and so going west forty
feet on the line of Third Street from this true corner will
not carry the line into the eighty feet line of Burmeister,
and so in this view there is no conflict in the description
of the two deeds, and no part of the land described in
either deed is described in the other.
But it is said the map of the town does not show any
change in the platting of block 13, and an inspection of it
shows that to be true, and yet as a matter of fact Main
Street was widened seven feet, and the alley in question
closed many years before the parties litigant acquired any
interest in block 13, so that there is nothing in the plat
of block 13, as it really exists, to mislead. But, apart
from this, municipal ordinances are akin to legislative
enactments; a municipal corporation resembling a
legislature, their charter representing the Constitution of
the State an imperium in imperio, and, therefore, these
ordinances within the sphere of their charter authority have
all the force of statutes, and within the limits of its
authority all persons are bound by the acts of the
corporation. (Sedgwick on Statutory and Constitutional Law,
pp. 462, 474.) As the citizen is presumed to know and take
notice of the laws of the land, so, too, is the law of
municipal ordinances. As from the views here taken, the law
is with the plaintiff in error, the judgment below is
reversed.