Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-03-30
IMPORTANT.
DecisiOn upon Dedication of
City Property.
The Case of Mary L. Booth and
Others VS.. Ct!y OF Memphis.
Opinion eff l.. ID. McKissick.
Esq, Special Chancellor.

concerned in the case, with the foll0Win
interesting opinion:
This bill was filed on the 2lst day OF Angus
1867, by the compliments, 20 enioin the Mayo
aud Aldermen of Memphis from proceeding 1
remove a fence from around a lot in the city
which is claimed by the complainant, Mar
L., and to restrain Them from taking posses
sion OF the same as a part OF Monros street, an
I'll they have first made compensation for III
same according to law.
Tue answer denies that the lot in question
belongs TO the complainant. Mary La, and in
sisJs that the same had been dedicated to tn
use OF the city as a part OF Monroe street. IN
plesdings, exhibits and proof show that il
July, 1895, A. b. Shaw, whom, it Is admitted
then owned the let, caus-d a civil engineer pI
the name OF VIM. Crane, TO make a survey
and plat of q piece OF ground then owned by
him in the city OF Memphis. A copy o
this Plat is in the record, and show
Thai shaw's ground, OF an unequal Wtdtt
Rice line on the south, nOrthw3rdIy, crossing
Gayoso street, Union street and Monroe strest
These strests sTe shown and marked on the
plat between parallel lines projecting a shor
distance to the east and west OF SbaW'Sp prop
eriy; but they are not shown 10 intersect any
other streets in the city. When this plat was
made Monroe street, as shown thereon, had in
fact never been opened or used as a publiC
street or highway. In October, 1855, Shaw usd
a public sale Of ms lots according 10 this plat
and sold the lots H. 2, 3 and 4, fronting thii part
OF Monroe street according to, and calling Tor,
tue plan as made by Crane in July and n the
deeds made by him in pursuance OF thai sale,
the plan is expressly referred to, and The lots
described by their numbers on the plan, and
by metes and bounds; and in a deed to Il. l.
GuiOn, the only one III the record, though it is
said the Others are similar. the beginning point
is on the south side OF Monroe street extended,
runs thence south, thence west, tho1ce north
10 the southern line OF Monroe street,
extended, and thence east on and with
the line of Monroe street extended, 10 the
beginning. This deed bears date the 18th day
OF October, 1858, the day ofthe sale, and stipu-
lates that the plan should be thereafter record
ed N the Registers office of Shelby county.
The deed contains the usual covenants, and
was shortly after its execution, duly acSnOw-
lodged and recorded; and the plan was also
recorded in December, 1885. 1t is proper to re-
marx that the deed TO GuiOn also describes the
property as lying within the corporate limits
of the city of Mempais, and east of Bayou Gay
OSo.
In October, 1853, the Board of Aldermen d.
rected Il d. Baugl, the then Mayor OF the ciLy,
to procure the right of way for Monroe strest
extended, east of Bayou GayOSo Baugh says,
in his depO ition, that be procured the rig 1t of
way from all of Lbe properly owners except
Mrs. Moore and 4. b. shaw. II doss not appear
how far east Of Bayou GayosO The city proposed
to open Monroe street, nor how many persons
gave tine right OF way, nor whether those per-
ownei properly TO the east or west of
shaw.
Mi. Baugh says that he hsd several interviews
Mr.. shaw upon tbs subject, and he de-
tails several conversations and parts of CONVEX
had with nina, the substance OF which
is: that when Baugh first mentioned the SUB
lect To him he told him that he understood
from Guion and others that he had given the
of way Tor toe street shaw denied this,
and said thai he had proposes to some OF the
Aldermen TO give the right of way, or let The
,lty have the or over which Il wa. pro
posed TO extend the street, for three hundred
5ollars, provided the city would open the street
al once, aod that this was hat he proclaimed
On the day of sale, add that they agreed to do
50, and promised TO lay the s1fJect be ore the
but that the city having refused to ae-
his offer, he 10 longer feit bound by it,
would not then take that sum. BaGgh in
listing that persons VINO hzd attended HIS sale
The J ear before, understood him to have given
Tue street, Shaw said they were mistaken, and
TO see them, and learn from them
they did understand he afterwards re-
ported to Baugh that some Of those persOns did
10 understand hiIu, but that others did not,
aud still denied that be had given the street or
proposed TO give II, except upon the terms
MI. Bsugn reported to one OF the city officers
hat Shaw refused to give toe right Of way, and
his advice as 10 what was best 10 be
lone. The officer asked him if Shaw owed the
city any taxes? Baugh informed him thst
shaw owed about 5000 %. II was then sug-
gested to propose TO Shaw TO release TIE taxes
for the right Of way. B2ugh accordingly made
The proposition TO Shaw, who accepted It bat
before carrying II into execution, BauSh Ie-
ported the agreement to the Board OF Alder
men, who refused to rahfy il, upon the ground
hat they had passed a resolution not 10 pur-
chase the right of4way for any more Streets
The Board having refused 10 ratfy the agree
Mr.. Baugh assumed thS responsibility OF
carrying ii cut himself, and accordingly pro-
cured shaw to convey the pisce Of ground TO
Ghh -NCWGhGIr ~ "&= NANAHf va h&A NAA-- A4g
before been, City GaL Collector. The des1 U
i dated ON the 2oth of October, 1853.
in February, 1861, the Board s5li
refusing 10 ratIfy Mr.. Baugl's action, he p,id
the amount of Shaw's taxes to the city, aud
,austd NeWsOm TO convey the io5 to his daugh-
the complainant, MaryL.
TIT deposition of Pryor Z. frame is aAso Ia
in the cause and he cOrrOborates M.
BauEh's statements as 10 SnaW's refusal 10 give
the right OF way to the city. he says thai ne
had frequent interviews with shaw, at the in
stance OF several Boards OF Mayor and Alder
nen, and both before and after the public sale
Of Shaw'S lOtsin October,lSoS, and that shaw in
yariably re used 10 give the right Of way for the
stree, bu: repeats the ststemsnJ OF his PROPOSE
to let tn city have the ground I i ABOUT
1900, with the further statement that the Off
OF the city at one time agreed to accept
MS proposition, but afterwards declined 70 do
10, Tor the reason that they cauld not make sat
sfacjCry arrangements with other property
owners. Mr. Baugh says that the Board Of
en- nsveT claimed that Shaw had given
he right OF Say or dedicated the street, al the
ime he was negotiating with Shaw, aud that
40 further steps wore taken to open the street
lefOre ne left the city in lS62, during the war.
Upon Ets return TO Memphis in July, 1855, he
ound the street open,
II iurt1 er appears from Mr.. Baugh's deposit
ion, that a resolution was passed, perhaps in
SOS, by the Board of Aldermen, appointinga
Committee to ascertain the cost OF opening
donFoB street rho OoInplainsnts, wifh 9th 'T5,
He'd a petition for compensation. At this time
donroe street was open ami being used by the
)ubt1c as far east as Wellington sIreBt. The
, 1mmittee, to whom was referred the petition
# the complsinants, reported adverseiy. aud
commended that the property be reliEqaished
0 the complainants. This report was adOp ed.
nd sometime thereafter CO uplaiuants put d
around the lot. and shortly thereafter the
BARD of Alderman passed a resolution deciar-
ng the street open; and tue pfoceedin gS OF the
sly pfi GERS under this last resolution caused
he filing of The bill in this cause.
There Is no proof iu the record showing when
T By whom Monroe street was opened east OF
GaXGQc to Wellington street. Nor is
here any proof whether the purchasers of lots
{ those lots and improved them. Nor does
he record show whether Wellington street Is
asst or west of Shaw's property.
The question presented for consideration
pom the foregoing facts is, whether A. b. ShaW
by his acts prior to the Goth day of OcJo-
1888, dedicated that part OF Monroe street
xJende1 as shown by his plan, TO the use OF
he public, and thereby precludsd himself
rom conveying 1t to NewsOn for although it !
ms sted in the ans ser that even if there
7ere no ded1cationl TIE purchase nG Baugh
as in tIust for the city, and that the city |
ou'd have the right, "a against the eomplain- |
mis-, TO call for The legal title or right of way,
pom refunding the amount paid by Bough,
he point was not pressed ia argument, and
ertainly could no. be maintained upon the
bOve facts. / shall, therefore,. ad lreSs myself
D an examination Of Tie authorities upon the
rt pfopogttiOnz /
1t is q fundamental rule OF law that no mans
rivate property shall be taken for public uss
uuS compensation bat this rule in no /
coptravenes another well established ruie /
law, that n man may voluntarily and freey /
eolca,e OF give MS private property 10 the |
uhiie use With OF without the expectation OF
rect or lndifest DSnsEt 10 himssn. Dedica.
OF is So co nmon a mode of devoting private
rOperty 20 pubic use, and the general doctrine |
so firmly established and well understood, |
it is lot necessarE to trace is htstcry iGr /
II comparatively modern origin, il
as grown 70 SUCH vast proportions that the
ourts have shown a disposition 10 check its
expsn don, and, in the language Of our
supreme Court, it ought TO he cautiously
pplief, anQ in tiat OF Sne Supreme court Of
lew York, mas been carried qaite far enough,
nd ought not to be extended. Such expfss-
Qns as these, while they do lot intend TO dis.
we ought to look closely into the facts and
circumstances OF each case 20 zee whether or
ct the act or intention, which is insisted on
amounting oa deqiGatan, is clearly and
nequivocauy estab iShei.
A dedication is defined to be the act OF devo-
or giving property to some proper object,
nd in such manner as to conclude the owner.
see noteg 20 poYaston VS., Paine, 2 Smiths
/. @. DS; and I constitute a dedication of
Ind TO pubic use thers must first hs Sn inten-
b DO II on the par OF the owner.'-Nash-
arne Gu u asemepis, psge l3i.l These PROPOSE
ons are admitted to be correct; but on bebaif
the defendants it was agre l hat this in
on may be Implied or presumed nom ciFcum-
ances, and that 1t is 10 be c0nciusfvely pre-
lIasd II one owning and exhibit mqp of it
j WEIGH q street j. defined, though not as yet
peped, and building lsts lie sold by tim with
,ferenco 10 Q h0H or Tear or thst street. In
lpporto Of this proposition / have been referred
q great many cases In New York, and to he
orthe OF yofC Cincinnati VS.. VIII .te,8 Peters,
! RarGiay vs.. Howell, . Peters, i9S; the City
New Orleans -, tue ppibed States, 10 Peters,
Yates VS.. Judd, Is Wjsoonsin, llSt Heis-
ron VS.. the Chicago and n. w. Railroad. 81
602; Pop VS.. the Town OF Uni9h, 3
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