Court: Judgment affirmed. Cause remanded.
Syllabus: A city proceeding to abate a nuisance in one of
its streets, is clothed with the attributes of sovereignty,
and may prosecute its suit in the first instance by a bill
in equity.
Where a defendant demurs to a complaint by a municipal
corporation to abate a nuisance, for the reason that the
same does not show grounds of equitable relief, but merely a
remedy at law, if any, and his demurrer is overruled, but
afterwards upon the trial fails to demand a trial by jury,
his demurrer, if otherwise valid, is thereby waived.
One who has applied for and has accepted a conveyance of a
lot in a town or city, according to a recorded plat of said
town or city, upon which plat a street appears bounding the
property, is by such act estopped to deny the existence of
the street, or to set up any title to the land embracing
such street acquired before the platting, or any right
acquired by adverse possession continued thereafter.
Counsel: John B. Allen, for Appellants.
The plaintiffs in error claim the lower Court erred, in
not striking the fourth and fifth paragraphs from the
amended complaint, as asked. The fact that the city had only
sold lots under two certain acts of the Legislature, and
pursuant to certain ordinances, and had not disposed of
Second Street in the same manner, were not issues to be
brought into this case. ( Stewart v. Bouton et al., 6 How.
Pr. 71; Evans v. Robbins, 29 Iowa, 474; Greene v. Palmer, 15
Cal. 411.) The object of the Town Site Act of 1867 was the
relief of the inhabitants of cities and towns upon the
public land. (14 U.S. Stat. 541.)
Such has been the policy of Congress in its legislation
upon this subject for years prior to the date of the above
act. ( Jones v. City of Petaluma, 38 Cal. 406.)
In its relation to the inhabitants, the city or town is
but a naked trustee; it holds title for only one
purpose--the benefit of the inhabitant, according to his
respective interest; it cannot take advantage of this
trusteeship, at his expense or to his prejudice, to alter or
enlarge its streets, or mark out new streets which it may
regard as desirable.
The inhabitant is vested from the date of his occupancy
with defined equitable rights, and the only act the city can
lawfully take is to convert this equitable into a vested
legal title. (1 Story's Equity Jurisprudence, revised ed.,
Secs. 322, 323.)
The city or town must accept such streets as are in
existence at the date of its becoming endowed with the legal
title. If other streets are desirable, or alterations
affecting possession needed, the manner is by the exercise
of the power of eminent domain, as prescribed by law, and
not in the arbitrary abuse or disregard of express trust. (
Fischer v. City of Benicia, 36 Cal. 562; Alemany v. City of
Petaluma, 38 Cal. 554.)
The act pleaded in the complaint and the title under it
amounted to a dedication by Congress of the streets, as they
had been known and used on occupied parts of the land, and
nothing further. ( Jones v. City of Petaluma, 36 Cal. 236.)
The matter of defense in the answer, if allowed to remain,
would have permitted defendant to show that at the time of
the inception of his occupancy the tract in dispute was part
of a block; that the streets of the city then existed; that
the purchase or settlement had originally been made on faith
of such a state of facts, and a continued possession for a
prescriptive period.
The doctrine of limitation applies in this case. If the
original relation of plaintiff to defendants had been that
of a trustee, it had renounced it, and been for more than
twenty years assuming an adverse attitude; while the
defendants had been by occupancy--open, actual, and
exclusive--maintaining title to the property hostile to this
avowed claim of plaintiff's. ( Boone v. Chiles, 10 Peters,
223; 12 Curtis, 83.)
From its inception in 1858 to the time of trial, the
possession set up in the answer was adverse and exclusive,
and nothing is shown by the record from which a dedication
to the public can be inferred. (Angell on Highways, 146,
Sec. 157; 3 Washburne on Real Property, 72, Sec. 7; Bigelow
on Estoppel, 491, note; Livingston v. Mayor of New York, 8
Wend. 85; 21 Am. Dec. 630.)
Plaintiffs in error contend the complaint sets forth only
a legal cause of action, if any.
No irreparable injury is alleged, as shown. No injunction
is prayed. Under our statute, the power of abating is given
to the Court. The fact of a nuisance is one preeminently
proper for a jury to determine.
W. G. Langford and T. J. Anders, for Appellee.
As to demurrer that the complaint did not state facts
entitling the plaintiff to equitable relief, if true, is not
a demurrer; but if the relief was "legal" only, to have
obtained a legal trial by jury, the defendant must have
moved for a jury trial before he can claim error. (New York
Code, Sec. 1662; Wait's Practice, Vol. 7, par. 419; Vol. 5,
par. 281; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y.
Rep., 7th Tiff, par. 30, 46.)
Our Code does not state whether the remedy is legal or
equitable.
Code of 1881, p. 134. Plaintiff has choice of whether he
shall have legal or equitable relief, and Courts of Equity
have jurisdiction. (2 Dillon's Municipal Corporations, Sec.
619, 6th rev. ed., and authorities there cited; People v.
Vanderbilt, 26 N. Y. Rep., p. 876, and same case, 28th vol.
Ibid, 396; Quincey v. Jones, 76 Ill. Rep. 231; Carter v.
Chicago, 57 Ill. Rep. 283; Story Eq. Jurisprudence, 6th ed.,
Vol. 2, from Sec. 921 to 927, inclusive.)
Whether a jury trial shall be allowed is a matter of
discretion with the Court, and such discretion is not
revisable upon appeal. (Wait's Practice, Vol. 5, p. 281, and
cases there cited.)
The right of a lot occupant; was the right of preemption,
founded on a right of preemption, this right of preemption
is a privilege to enter land, not a legal or equitable
vested right.
A privilege founded on a privilege can be no greater than
the privilege upon which it is founded, and neither is a
vested right. (9 Wallace, U.S. Supreme Court Reports, p.
187, Fresbie v. Whitney.)
That no right vests, except when an occupant has complied
with the act of the Territorial Legislature. (See Cofield v.
McClellan, 16 Wallace, U.S. Supreme Court Rep., p. 446;
Dupond v. Barstow, 45 Cal. Rep. 446.)
One of the rightful powers of the Territorial Legislature
is to establish roads and highways.
It can do this by direct act, or through its agent for
that purpose; such as county commissioners, supervisors,
cities, etc.
The only restriction on this power is, that private
property shall not be taken for public use without
compensation.
Without a statute of the United States granting it, it
would also be restricted from making any primary disposal of
the soil; but Congress obviated this last objection by the
Act of the 18th of May, 1796. (United States Revised
Statutes, p. 456, Sec. 2477.)
Hence, a highway is legal when established by authority of
the Territorial Legislature, except as against a person
asserting a vested right preexisting the establishment of
the road.
The Territory delegated this power to the city of Walla
Walla, in its various charters, and the city exercised it by
establishing Second Street.
The Legislature further established this and all streets,
by authorizing the sale of lots. (See said Act of December
11th, 1866, p. 153.) Further, by the act of the Territorial
Legislature, November 21st, 1871, by confirming sales made
in conformity with plat, thus confirming the streets.
The Legislature in 1877 (See Stats. W. T., p. 299),
created the streets made in conformity of plats, streets.
And see plats legalized, Stats. W. T., 1881, pp. 402-3.
Laying out a town and selling lots is dedication of
streets. (Dillon on Municipal Corporations, 6th ed., Secs.
635, 640.)
Were all the above wrong, the sale and purchase of lots
according to plat estops the city, and Baker and Stephens,
and their vendors, from claiming the street. (Cases above
cited, and 36 Barbour's Rep. 136; 1st Hill Rep. 191.)
The United States held all the legal and equitable title
until the patent issued; then the city held it subject to
the act of the Territorial Legislative Assembly; and the
place was a public street all the time; and statues of
limitation could not run against the United States, nor in
favor of a public nuisance.
Judge(s) Opinion by HOYT, Associate Justice.