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District Court of Appeal, Second District, Division 1, California.

STUMP et al. v. CORNELL CONST. CO. et al.

Civ. 15110.

Decided: May 24, 1946

M. C. Schrager, of Los Angeles, for appellants. Ray L. Chesebro, City Atty., and Bourke Jones and Roger Arnebergh, Asst. City Attys., all of Los Angeles, for respondents.

This is an appeal from a judgment for defendant in an action to quiet title.

The action involves a purported right of way of an alley at the rear of plaintiff's property. The City of Los Angeles is the only interested party defendant. The answer sets up the record of events in full, which were stipulated to be correct and upon which the court found for defendant City of Los Angeles. The pertinent events, in their chronological order, are as follows: On or about April 17, 1941, the Cornell Construction Co. filed with the City of Los Angeles a tentative map of a proposed subdivision which proposed subdivision included property now owned by plaintiff; on May 9, 1941, the City Planning Commissioners sent a communication to the City Planning Committee of the City Council which recited, ‘The Board of Planning Commissioners approved this Tract on May 8, 1941, upon the following conditions,’ among which was the following: ‘5, that a future alley 20 feet in width be shown at the rear of the lots fronting on Colfax Avenue’; on or about May 15, 1941, the Planning Committee of the City Council reported to the City Council that the proposed subdivision be tentatively approved subject to the conditions set forth in the above mentioned report of the City Planning Commission; on May 22, 1941 the City Council adopted the report of the Planning Committee of the Council; on June 20, 1941, said Cornell Construction Company submitted to the city a final map of a subdivision covering a portion of the proposed subdivision shown in the tentative map theretofore filed, and which includes plaintiff's property; on August 7, 1941, the Cornell Construction Company recorded in the office of the County Recorder of the County of Los Angeles a ‘Declaration of establishment of conditions and restrictions,’ pertaining to the subdivision in question. On August 14, 1941, said final map was approved by the City Council and recorded in the office of the County Recorder on said last mentioned date; on or about December 26, 1941, the Cornell Construction Co. deeded the lot now owned by plaintiff to Edwin Freund which deed was recorded March 6, 1942; on November 30, 1942, said Edwin Freund deeded said lot to plaintiff; on August 4, 1944, the complaint in the within action was filed; on August 22, 1944, the City Council of the City of Los Angeles adopted the following resolution, the pertinent part of which is as follows,

‘Whereas, that certain 20-foot strip of land, being part of Lots 1 to 15 inclusive, Tract No. 12838, recorded in Book 245, page 35 of Maps, Records of Los Angeles County, and parts of Lots 1 to 16 inclusive, Tract No. 13069, recorded in Book 254, page 37 of Maps, Records of said County, and designated a ‘future alley’ thereon, was dedicated for public use for alley purposes by said tracts, the dedication to be completed at such time as the Council shall accept the same for public alley purposes; and

‘Whereas, the acceptance of dedication and the opening of said strip of land as a public alley at this time is necessary to the public interest and convenience;

‘Now therefore be it resolved, that the City of Los Angeles hereby accepts the above mentioned 20-foot strip of land as a public alley;’

On September 21, 1944, the answer of the City of Los Angeles in the within action was filed.

The resolution of the city council, quoted above, purports to accept a ‘20-foot strip of land as a public alley’ which, ‘designated as a ‘future alley’ thereon, was dedicated for public use for alley purposes.' The only evidence of a ‘dedication,’ or any dedication, that appears on the map referred to in the resolution, is in words and figures as follows,

‘We hereby certify that we are the owners of or interested in the land included within the subdivision shown on the annexed map, and that we are the only persons whose consent is necessary to pass a clear title to said land and we consent to the making and recordation of said map and subdivision as shown within the colored border lines, and hereby dedicate to the public use the Avenue, Street and Boulevard shown on said map within said subdivision and hereby dedicate to public use for street and alley purposes, those certain strips of land designated as ‘Future Street’ and ‘Future Alley’ shown on said map within said subdivision, reserving to ourselves for use of ourselves and successive owners of the respective lots shown on said map fronting on said strips, any and all ordinary uses of said land except the erection of construction of buildings thereon until such time as the legislative body shall accept the same for a public street and public alley and also hereby dedicate to the City of Los Angeles perpetual easements for public utility and storm drain purposes in the strips of land so designated on said map.' (Italics added.)

The map, as noted above, was filed August 14, 1941.

The deeds which describe the property in question as ‘Lot 7 of Tract 12838, as per map recorded in book 245, page 35 of Maps, in the office of the recorder of Los Angeles County, California,’ also contain the following:

‘This deed is made subject to each and every covenant, condition and restriction and easement, contained in that certain Declaration of Conditions and Restrictions executed by the Cornell Constitution Co., and recorded in Book 18618, Page 312 Official Records and are expressly imposed on the herein described property as if set forth in full.’

The trial court found for the defendant, City of Los Angeles, and judgment was entered accordingly.

It is contended by appellant, in substance, that the language ‘dedicate to public use * * * until such time as the legislative body shall accept the same’ is neither in fact nor in law an actual dedication but is merely an offer of dedication. It is argued, in that connection, that before such an offer becomes effective it must be accepted; that such acceptance must be by use for the purpose intended over a sufficiently long period of time to indicate an acceptance, or, by a formal act of acceptance by the proper authorities according to law. Quoting from appellant's brief, ‘Since the ‘offer of dedication’ was made by the Cornell Construction Co., they have sold off all of the lots in this tract. The owners have used this property and have acted in other ways inconsistent with the use for which it is now claimed the land was dedicated. It has never been used for alley purposes. In the reconveyance made to these present owners the easement was not recognized.' It is argued further that ‘the City of Los Angeles did not consider the ‘offer of dedication’ a ‘complete dedication,’ else why was it necessary for the Council to pass a ‘Resolution’ on August 22, 1944, stating in part: ‘* * * the dedication to be completed at such time as the Council SHALL ACCEPT the same for public alley purposes * * *.’ ‘In the present case, the actual acceptance was not made until three years after the offer was made, and after other parties became owners of the land whose consent was not obtained. There can be no implied acceptance because the City (the public) did not use the ‘alley’—in fact, it was used by the plaintiffs and adverse to the use of an alley for more than three years. A dedication without acceptance, is in law, merely an offer to dedicate, and such offer does not impose any burdens nor confer and rights, unless there is an acceptance. THE RULE THEREFORE IS, THAT ACCEPTANCE ON THE PART OF THE PUBLIC IS NECESSARY TO A VALID DEDICATION OF LAND AS A HIGHWAY.' (Emphasis included.)

The authorities are unmerous in support of the general principles on which appellant relies. In Harding v. Jasper, 1859, 14 Cal. 642, ‘the main question in dispute on the trial was the question of fact whether this land in controversy had been dedicated to the public as a highway.’ In that connection, the court declared: ‘The vital principle of the dedication, is the intention to dedicate; and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made.’ The court cited Stacey v. Miller, 14 Mo. 478, 55 Am.Dec. 112, wherein ‘it was held that the bare fact that a farmer opens a lane through his farm, and allows the public to use it for fifteen years, does not authorize the inference of a dedication to the public. The intent to dedicate must be obvious.’ The court continued further, quoting from Badeau v. Mead, 14 Barb.N.Y. 328, 339, with approval, ‘The doctrine of dedication has been carried quite far enough, and ought not to be extended. Persons who have from mere kindness, suffered others to enjoy privileges in their lands, have been eventually coerced into parting with them entirely, without compensation, and to yield up as rights what they had previously suffered or allowed as favors, and the simple expression of an intention, has often been distorted into a positive promise, and occasionally to those who have no distinct interest in its performance. Our title to our lands is too important to be lightly lost, upon slight presumptions. Before the owner should be deprived of his property, his intention to part with it should be clearly and unequivocally expressed. And for greater certainty it would be better, far better, that to be effective, it should be evinced by writing, rather than by doubtful conduct or still more doubtful declarations.’ In City of Manhattan Beach v. Cortelyou, 1938, 10 Cal.2d 653, 660, 76 P.2d 483, 486, appears the following: ‘To constitute a dedication of land for public use there must be an offer by the owner to appropriate it for such purpose, and the intention so to do must be clearly and unequivocally manifested. This is the vital principle of dedication. It was stated in the early case of Harding v. Jasper, 14 Cal. 642, 648, and has been consistently followed since.’ Many dedicisions uphold this doctrine in a variety of situations to which it applies. For example in Schmitt v. City & County of San Francisco, 100 Cal. 302 at 308, 34 P. 961, 963, with regard to the subject of dedication and acceptance, appears the following: ‘If, at the time Hayes conveyed to Hawley, he had a right to revoke the dedication or offer to dedicate the land in controversy, there can be no doubt that conveyance had that effect. The description made no reference to the alleged street, but conveyed it as part of the tract sold. If the map and other facts show an offer to dedicate only, a conveyance without reservation must amount to a revocation, unless the purchaser had notice of some fact which would estop the grantor from revoking. It is a proposal to donate, and, if the proposed donor transfers the property before it has passed to the donee to another, it is no longer his to give.’ See also Myers v. City of Oceanside, 7 Cal.App. 87, at page 92, 93 P. 686; People v. Reed, 81 Cal. 70, 22 P. 474, 15 Am.St.Rep. 22; Niles v. City of Los Angeles, 125 Cal. 572, 58 P. 190; Hayward v. Manzer, 70 Cal. 476, 13 P. 141; Forsyth v. Dunnagan, 94 Cal. 438, 441, 29 P. 770; City of Santa Clara v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303; Lyons v. Schwartz, 40 Cal.App.2d 60, 104 P.2d 383; City of Laguna Beach v. Consolidated Mortgage Co., 68 Cal.App.2d 38, 155 P.2d 844. And in Brown v. Bachelder, 214 Cal. 753, 7 P.2d 1027, 1029, the Supreme Court, referring to a Tract Map, declared: ‘In answer to this contention the record fails to establish an acceptance of the offer to dedicate made by the filing of the map * * * upon which said strip was delineated as a street, either by official acceptance or use of the same by the public. An acceptance, either by public user or formal resolution of acceptance is essential to a completed dedication.’

Respondent disputes the application of the doctrine hereinbefore considered and the decisions cited by appellant in support thereof. It is contended by respondent that, ‘Two issues are involved in this case: First, was there a compliance by the subdivider and the City of Los Angeles with the terms of the Subdivision Act and the local ordinance authorized thereby; second, did the appellants acquire title subject to the easement of record?’ and that ‘both of these questions must be answered in the affirmative.’

Respondent relies entirely on the California Subdivision Map Act (Stats. 1937, page 1863; formerly Deering's Act 6500; now Sections 11500 to 11628 of the Business and Professions Code). Its provisions are cited and quoted extensively in respondent's brief, from which it is argued that, ‘It therefore clearly appears that the dedication of the alley was proper and in conformity with the provisions of the Subdivision Map Act of the State of California and of the local ordinance of the City of Los Angeles.’ The subject of dedication is considered at length, but about the only reference to an easement, except as noted above in respondents' reference to the issues involved, is as follows, ‘In our case, the subdivision was made pursuant to the provisions of the Subdivision Map Act; the City of Los Angeles approved the map prior to its being recorded; and the deed referred to the map and thereby recognized the easement shown on the map.’ It is alleged in the answer that the City of Los Angeles is the owner of an easement over the plaintiff's land.

It is important to note at this point, that on the duty recorded subdivision map herein referred to appears the following pertinent certification; ‘I hereby certify that the City Council of the City of Los Angeles approved the attached map and accepted on behalf of the public all of the streets, roads, alleys, highways and easements shown on said map except those strips marked ‘future street’ and ‘future alley’ provided that nothing herein contained shall be construed as acceptance of any improvements made in or upon any street, road, highway or easement shown on this map.' (Italics added.) The foregoing certification is signed by some one as ‘city clerk.’ The strip marked ‘future alley’ which the city affirmatively did not accept at the time the map was approved, is what respondent now contends constituted an easement at the time the lot, over which it extends, was purchased by appellant.

The subdivision ordinance, which, it is contended by respondent, was ‘enacted pursuant to Section 1 of the Subdivision Map Act,’ is, in part, as follows:

‘(12). In lieu of the dedication of any street or alley, a future street or alley dedication may be permitted and shall be made in the following language:

“We hereby dedicate for public use for street or alley purposes (as the case may be), that certain strip of land designated as future street or future alley as shown on said map within said subdivision, reserving to ourselves for the use of ourselves and successive owners of the respective lots adjoining the future street or alley shown on said map any and all ordinary uses of said land except the erection or construction of buildings thereon, until such time as the legislative body shall accept the same for street or alley purposes.” (Italics added.)

It is at once evident that the procedure demanded by this ordinance was adopted by, or consented to, by the subdivider, the Cornell Construction Co., on the final map when submitted for approval. It also appears evident that the city, by such procedure, seeks to acquire advantages in connection with such developments without relating burdens or disadvantages. The problems of potential lot owners in the subdivision apparently are not taken into account so far as the city is concerned. But whatever the ordinance contemplated, it should be emphasized in that regard that a municipal ordinance that is related to the title of land and actually affects, or purports to affect such title, does not constitute record notice unless recorded according to law. And, as noted elsewhere herein, an easement is an interest in land and directly related to the title. Incidentally, ordinances that relate to police power and limit the use of land, such as zoning ordinances, do not affect the title to land, hence are not involved in the questions here considered.

The pleadings raised but one question and presented but one issue, namely, was there an easement for alley purposes across and over the rear of the lot in question, of which appellant had record notice at the time it was acquired? If there was, then the evidence sustains the findings; if there was not, then there is no evidence to sustain the findings. Before disposing of this question, it should be noted that the use of the words, ‘future alley’, in the ordinance and upon the map as well, are of no significance; they are merely descriptive.

The Subdivision Map Act has no application to the issue here presented. The law of easements and the law of gifts is controlling; the law of easements predominantly, but the law of gifts to a certain extent, because a dedication is, in a sense, a gift. The confusion on the subject of dedication, referred to in some of the decisions, is more apparent than real. It appears to be the outgrowth of a confusion of terms; the term dedication is sometimes used as a synonym of easement. The word dedicate simply means to give or offer to give. A dedications ripens into an easement, which is an interest in land, only when it is formally accepted or impliedly accepted. It is implied when, as the authorities uniformly hold, use of the property by the public for such a length of time, in the circumstances, as will conclusively establish an intention to accept the dedication. County of Inyo v. Given, 183 Cal. 415, 191 P. 688, 690, summarizest the law as follows: ‘Considering a dedication as a voluntary transfer of an interest in land, it partakes both of the nature of a grant and of a gift, and is governed by the fundamental principles which control such transactions. Hence a dedication, like a contract, consists of an offer and acceptance, and it is settled law that a dedication is not binding until acceptance, proof of which must be unequivocal. 18 Corpus Juris, [Dedication, § 67], p. 72; [26 C.J.S., Dedication, § 34]. The acceptance may be actual or implied. It is actual when formal acceptance is made by the proper authorities, and implied, when a use has been made of the property by the public for such a length of time as will evidence an intention to accept the dedication. Elliott v. McIntosh [41 Cal.App. 763], 183 P. 692. Two things, however, are necessary to complete dedication, an offer and acceptance. A dedication without acceptance is, in law, merely an offer to dedicate, and such offer does not impose any burdens nor confer any rights, unless there is an acceptance. The rule therefore is that acceptance on the part of the public is necessary to a valid dedication of land as a highway, 1 Elliott on Roads and Streets, § 122; 8 Rul.Cas.Law, p. 898. * * * As before stated, so far as the public is concerned, there must be an acceptance to complete an offer of dedication. Dedication is the joint effect of an offer by the owner to dedicate land and an acceptance of such offer. There can be no dedication without the participation of both. City of Anaheim v. Langenberger, 134 Cal. 608, 610, 66 P. 855. Contrary to the doctrine announced in the LeBreton case (San Leandro v. Le Breton, 72 Cal. 170, 13 P. 405), the mere making of sales of lots with reference to a map does not, therefore, constitute an irrevocable dedication to the public. As between an owner of land and the public, this act alone is not sufficient to constitute dedication. An acceptance must be had either by user or by some formal act. See note, 57 Am.St.Rep. 753. So far, therefore, as the Le Breton opinion can be construed as militating against the rule, it should have no weight. People v. Reed, supra. The rule that such act simply constitutes an offer to dedicate which does not become effectual until acceptance is reflected in a long line of cases in this state’, citing cases. See also People v. Rio Nido Co., Inc., 29 Cal.App.2d 486, 85 P.2d 461, and City of Santa Clara v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303.

There was nothing in the Subdivision Map Act, at the time the events herein considered occurred, that suggests any changes in the well established law relating to dedications, gifts and easements. And the legislature, in 1943, added Section 11611 which requires the governing body of a city, at the time a subdivision map is approved, to ‘accept or reject any or all offers of dedication.’ Neither a municipality nor any political subdivision, corporation nor individual, is obliged to accept property without consent. It is well settled that only ‘one who has a vested estate in the servient tenement,’ has the power to dedicate an easement by proper conveyance. Civil Code, Sec. 804. Here the Cornell Construction Company dedicated the easement and the dedication or offer, as such, was sufficient. The City of Los Angeles, however, not only did not accept it but, in effect, affirmatively rejected it. Meanwhile the grantor sold the land and manifestly thereafter had nothing to offer. The offer, so far as the Cornell Construction Co. was concerned, was extinguished. Hence, when the City of Los Angeles finally went through the formality of accepting an offer, there was no offer to accept.

When appellant acquired title to the land in question, it was so acquired with no record notice of an easement for alley purposes. Indeed, as a matter of fact and as a matter of law, no such easement existed and the record herein is destitute of any evidence to support the court's finding in that regard.

For the foregoing reasons, the judgment is reversed with directions to enter judgment for plaintiff, appellant to recover costs.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.

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