AVERY et al. v. UNITED STATES, 104 F. 711

LURTON, Circuit Judge, after making tbe foregoing statement of tlie case, delivered the opinión of the court. 1. The deed of Leonard Case to the Cleveland Library Association described the property as bounded on the west by “Case Place.” If Leonard Case had any title, contingent or otherwise, to Case place, this call for Case place as a monument bounding the parcel conveyed to the library association would carry that title to the center of Case place, and this title would pass to the United States under the proceedings for the condemnation of the property of the library association.

This has been conceded by counsel for the Case heirs, who have limited the controversy to the western half of the street which the government is seeking to appropriate. 2. The deed of April 9, 1856, to the United States for the lot now owned and occupied by the United States differed from the conveyance subsequently made to the library association, in that (he easterly line of the parcel conveyed to the United States is described as running “with the westerly line” of Case street.

We shall assume, for the purposes of this case, that, under the law of Ohio, a grantee holding under a conveyance which bounds his property by the west line of a street will take title only to the west line of the street, and not to the center thereof, as he would if the parcel had been simply bounded “by the street,” or “along the street,” or “upon the street.” Lough v. Machlin. 40 Ohio St. 332; Lembeck v. Nye, 47 Ohio St. 336, 351, 24 N. E. 686, 8 L. R. A. 578. 3. Bid the city of Cleveland acquire an unqualified fee in the parcel of land in controversy by virtue of the deed of Leonard Case of 'May 18, 1859?

First, it is said that the city had not the capacity to take the fee. A municipal corporation, unless restrained by statute or charter, has the implied power to purchase and hold all such real estate as may be necessary to the proper exercise of powers specifically granted. 2 Dill. Mun. Corp. (2d Ed.) § 432; Ketchum v. City of Buffalo, 14 N. Y. 356; Beach v. Haynes, 12 Vt. 15; State v. Woodward, 23 Vt. 92; Reynolds’ Heirs v. Commissioners, 5 Ohio, 204; Gall v. City of Cincinnati, 18 Ohio St. 563.

So it is competent for the legislature to authorize the appropriation of the title in fee to land taken for a public use, and if such a full appropriation is made, and the owner compensated, nothing remains in the owner, and he cannot claim additional compensation if the land shall he subsequently alienated or lawfully appropriated to a different public use. Cooley, Const. Lim. (5th Ed.) 692; Heard v. City of Brooklyn, 60 N. Y. 242, 247; Heyward v. Mayor, etc., 7 N. Y. 314; Com. v. Armstrong, 45 N. Y. 234; Haldeman v. Railroad, 50 Pa. St. 425, 436; Coster v. Railroad Co., 23 N. J. Law, 227; Dingley v.

City of Boston, 100 Mass. 544. The legislative power has not generally deemed it essential to require or authorize the taking of any greater interest in the land than an easement terminable by cessation of the use. Hence the well-settled rule that when the public use for which the property was taken, or to which it was dedicated, has become impossible, the freehold reverts to the grantor. But this right of reverter depends upon the question as to whether the original owner was devested of his entire interest by the proceeding, dedication, or grant under which the municipality acquired the property in question.

The charter under which the city of Cleveland was governed at the time of Case’s deed (34 Ohio Laws, 271), gave ample power to receive, purchase, and hold real estate for the due exercise of its corporate purposes, and we fail to find anything in the statute law of Ohio which would convert a fee in property acquired by deed for street pmposes into a conditional estate or a mere easement. This power of taking land for street purposes by deed or grant is quite distinct from the power of appropriating land in invitum. The observation of Judge White in Gall v.

City of Cincinnati, 18 Ohio St. 563, 568, where the title of the city to the market space involved depended upon deeds, that “the title acquired by purchase is to be determined by the character of the conveyance, and is not affected by the character of the estate conferred on the city in case of appropriation,” is equally true here. Neither is the title of the city in any degree affected by the character of title and trust created by the Ohio act of March 3, 1831 (29 Ohio Laws, 320, and

section 2601, Rev. St. Ohio). That act simply provides what the effect shall be of recording a town map or plat made by persons laying off a town.

Under that act the recording of such plat showing streets, commons, alleys, etc., operates as a conveyance in fee to the town or city of the property laid off into streets, etc., to be held “in trust to and for the uses and purposes so set forth and expressed or intended.” This act has been construed by the Ohio ’court as a statutory dedication of streets, commons, etc., shown by such a recorded map or plat, and as conferring no power of alienation discharged of the use thereby indicated, and that when the particular use becomes impossible of execution the property reverts to the dedicator or his representatives.

Board v. Edson, 18 Ohio St. 226; Commissioners v. Young, 8 C. C. A. 27, 59 Fed. 96, 99. The deed made by Leonard Case is the only source of the city’s title, and the title thereby acquired is entirely unaffected by the statute we have cited, or the Ohio cases which construe- and apply it. Neither have we to deal with a common-law dedication. That sort of dedication, as we had occasion to observe in Commissioners v. Young, 8 C. C.

A. 27, 30, 59 Fed. 99, operates “only by estoppel.” “The acquiescence of the owner and use by the public estop him from asserting any right of possession hostile to such use.” It is obvious that under such a dedication the public acquire only an easement. “The owner of the fee may resume possession wherever there has been a full and lawful abandonment of the use for which the dedication was made.” This is the well-settled rule concerning public roads, streets, etc., when the fee remains in the owner of the land over which the road, street, or alley has been established. Commissioners v.

Young, cited above; Village of Fulton v. Mehrenfield, 8 Ohio St. 440; Barclay v. Howell, 6 Pet. 498, 8 L. Ed. 477. The title of the city of Cleveland depends neither upon a common-law dedication, nor upon a statutory dedication under the act of March 3, 1831, nor upon the effect of any legal proceeding appropriating land for street purposes, but solely and wholly upon the legal effect of the deed of Leonard Case to it.

The city, in view of the public interests involved, has consented to a nominal assessment of damages for its interest in Case street; and if Leonard Case has, by his deed, devested himself of every interest in the property, his heirs have no interest to be appropriated by the present proceeding, and no ground to complain because they were not awarded damages. The deed of Leonard Case cannot, in strictness, be regarded as a pure donation.

We have no other evidence as to the consideration than that shown by its recitals, and by the ordinance of the city granting to the vendor, in consideration of his conveyance, the right to occupy a portion of the sidewalks upon the four sides of the lot retained by him, and subsequently conveyed to the Cleveland library Association.

His deed recites that the consideration for his conveyance is one dollar, "and divers other considerations received, to my full satisfaction, of the city of Cleveland.” The right to occupy five feet of the sidewalk upon Superior, Wood, Rockwell, and Case streets, with pilasters, areas, and balconies, for a block of buildings about to be erected upon that part of his original lot retained by him, was a valuable consideration.

If it be conceded that this contract was in excess of the corporate power of the city, as urged by counsel, it would still leave the deed as one made upon a purported valuable consideration, and take it out of the category of a purely voluntary donation. The deed undoubtedly carried the legal title to the city. Apt words for that purpose are used.

The words are, "do give, grant, bargain, sell, and confirm unto the city of Cleveland,” not an, easement or right of user, hut "the following described tract or lot of land.” Then follows the description, which concludes with the words, “which land is conveyed to said city as and for a public street of said city.” The habendum clause is in these-words: “To have and to hold the above granted and bargained premises, witli the appurtenances thereunto belonging, unto the said city of Cleveland and its assigns, forever, to its and their own proper use and behoof.” This is followed by tlie usual covenant of seisin and warranty, the latter running to the city and “its assigns.” The words concluding the description, “as and for a public street of said city,” are the only words which in any way distinguish this conveyance from an ordinary warranty deed to an individual.

Do these words, without more, operate to qualify the estate conveyed so that, upon a discontinuance of Case street, the property will revert to the grantor? If so, the plaintiffs in error, as heirs at law of the grantor, have an interest in such possibility of reverter which is of some value, and which cannot he appropriated without compensation. The mere expression of a purpose for which it is intended that the granted premises will be used will not debase a fee into a conditional estate. This rale we had occasion to declare and apply in the case of Commissioners v. Young, 8 C. C.

A. 27, 36, 59 Fed. 96, where the authorities are fully considered and cited. The deed construed in that case was a quitclaim deed to the village of Youngstown by the heirs of one who had theretofore dedicated the parcel of land as a “burying ground.” The words, “to he under the authority and control of its proper council and municipal authority, in conformity with the act of the legislature of Ohio in that behalf,” were held to be words merely indicating the purpose of the grantor as to the use to which the property should be appropriated, and as not making fhe fee a conditional one.

The Ohio act referred to was one which regulated the powers of villages over cemeteries. The declaration of the purpose to which the grantor-expected the property to be devoted, and the details of management, read into the deed by the reference to the Ohio act, tended much more strongly to make the deed there construed a conditional fee than the deed here involved. The opinion of this court in that case is therefore controlling in the disposition of the present case.

There are in the Case deed no words of re-entry and no words implying a condition other than the words, “as and for a public street.” “A deed will not be construed to create an estate on condition unless language is used which, according to the rules of law, ex proprio vigore imports a condition, or the intent of the grantor is otherwise clearly and unequivocally indicated.” Rawson v. Inhabitants of School Dist. No. 5, 7 Allen, 125, 127. The words, “as and for a public street,” do not, ex proprio vigore, import a condition. In Greene v. O’Conner, 18 R.

I. 56, 25 Atl. 692, it appeared that the owner of land conveyed a strip to the city of Providence. The conveyance was in fee, but recited that “this deed is made upon the condition that the said strip of land shall be forever kept open and used as a public highway, and for no other purpose.” It was held that the clause did not create a condition subsequent. In Kilpatrick v.

City of Baltimore, 81 Md. 179, 31 Atl. 805, the conveyance was of a parcel of land to the city, with an habendum clause as follows: “To have and to hold the parcel of ground above described, * * * unto the mayor and city council of Baltimore aforesaid, and its successors, forever, as and for a street to be kept as a public highway.” The land was diverted to another use, and action was brought to recover the property as for a condition broken.

The court held that the words were consistent with an intent to repose a confidence in the authorities that they would carry out the purpose of the grantor so long as it was reasonable and practicable, but did not constitute a condition subsequent. In Rawson v. Inhabitants of School Dist. No. 5, cited above, the words, “for a burying ground, forever,” in a deed to the town of Uxbridge, were held not to make the estate conditional. In Raley v.

Umatilla Co., 15 Or. 172, 13 Pac. 890, a warranty deed to the county, “for the special use, and none other, of educational purposes, and upon which block shall be erected a college or institution of learning,” etc., was held to convey an unqualified fee. In Beach v. Haynes, 12 Vt. 15, a conveyance of land in fee to the town of Westford, “for the use of a common,” was held to pass an alienable fee; and in State v. Woodward, 23 Vt. 92, a deed to a town, “for the use of the town as a meeting house,” was held to pass an unqualified fee. In Taylor v.

Binford, 37 Ohio St. 262, it was held that the grantor could not re-enter for condition broken, where his deed was to a township board of education, “its successors and assigns, forever,” “for the use of school purposes only,” although the property has been sold at public sale to the highest bidder and conveyed by the board. In Watterson v. Ury, 5 Ohio Cir. Ct. R. 347, affirmed by the supreme court upon the opinion of the circuit court, the deed contained a clause, “as a burial ground for the Roman Catholics.” It was held that the grantee took a fee-simple estate, and not an estate upon condition.

To the same purport are the cases of Curtis v. Board, 43 Kan. 138, 23 Pac. 98; Packard v. Ames, 16 Gray, 327; Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502. If the deed" of Case devested the grantor of every interest, and conveyed an unconditional fee, the title thus vested was unaffected by the subsequent city ordinance. The words, "as and for a public street of said city,” are to be regarded as an expression of the grantor that the property shall be constituted and maintained as a public street, so long as it shall be reasonable and practical.

The ordinance is the action of the city carrying out this purpose of the grantor. Such an ordinance was made necessary by the Ohio act of March 18, 1859 (56 Ohio Laws, 57), which provided that no street thereafter dedicated to public use by its owner should be deemed a public street so as to impose responsibilty upon the city for its care and maintenance, “unless the same shall be accepted and confirmed by an ordinance specially passed for such purpose.” The object of the ordinance is therefore palpable.

Its effect was not to qualify the city’s title, but to make a public street over and upon property which the city owned in fee. That the title of a city to its streets is property held pnblici juris for use as streets may be conceded. But if the grantor has parted with all of his title, and the street is lawfully vacated or devoted to some other public use, no right, title, or interest of the grantor is affected, and his heirs have, as such, no interest which is taken and for which compensation may be demanded.

The rights of abutters may be affected by devoting a street to other purposes, and they may have such rights as will entitle them to interfere, but the grantor has no such right if. in fact, there is no reverter upon abandonment of use asa street.

We cannot hold that the language of this deed so unequivocally imports a right of re-entry upon the discontinuance of this street as to make the title subject to a condition subsequent without violating the cardinal principle of real property, “that conditions subsequent, which defeat an estate, are not to be favored or raised by inference or implication.” The judgment is accordingly affirmed.