City of Fort Smith v. McKibbin.

ties, like the individuals who compose them, have no such legal presumption in their favor. No authority is shown to support the position that they are not like other corporations, or private persons, subject to the operation of the statutes of limitations; nor can we see any reason which can bring them within the exception, which is admitted to apply to the sovereign and the State.' The judgment was reversed.

"In South Carolina it was held that a continued and adverse obstruction for ten years, of a right of way by the owner of the soil over which it passes, bars under the statute of limitations the right to the easement. Bowen v. Learn, 6 Rich. 298. The way referred to in this case was a private way, but such ways are also public. State v. Pettis, 7 Rich. 390.

"In the case of City of Galveston v. Menard, 23 Tex. 349, ROBERTS, J., after citing with approbation Rowan's Ex'rs v. Town of Portland, 8 B. Monr. 259, said: 'Our statute of limitation of five years confers upon the possessor full title, precluding all claims except that of the government, and saving the disability of marriage coverture or insanity. By our statute also the right of entry is barred in ten years. It has often been held as to ways and watercourses, that if the right of entry be barred, the right of recovery is lost. The possession that will give title to a street, under this statute, should not only be under claim of a deed, etc., but it should be adverse, and so exclusive in its nature as to give notice unequivocally of an assertion of individual right to the street. This strictness in the rule as to possession of streets and other common property results as a necessary consequence of the character of the property, and the uses to which it is applied. Nothing short of a visible appropriation of it, to the exclusion of the public, except at the discretion of the possessor, can in such case be held to be adverse.'

"Rowan's Ex'rs v. Town of Portland, 8 B. Monr. 232, cited in the above case in 23 Tex., was a contest as to the right to part of a street in said town. Chief Justice MARSHALL, of the Supreme Court of Appeals of Kentucky, in delivering the opinion of the court, at page 259, says: 'It only remains then to inquire how far any portions of the slip in question have been freed from the dedication to the public, and become private property by an adverse possession, and claim of individual right for twenty years before this suit was brought. That the public right, as growing out of the dedication in this case, was subject to be diverted and defeated by such possession admits, as we think, of no doubt. The dedication was not to the use of the Commonwealth, as a corporate being, and invested no title or interest in it. The maxim, nullum tempus occurrit regi, is therefore inapplicable.'

Dudley v. Trustees of Frankfort, 12 B. Monr. 610, was an injunction by Dudley to restrain the said trustees from interfering with his property on Mero street, in said town. The marshal, acting under authority of the board of trustees, was about to execute the order of said board, to remove obstructions on said street, the inclosure of said Dudley, claiming it was on the street when the injunction was obtained. The plaintiff claimed the property as his own, and relied on the statute of limitations. HISE, J., who delivered the opinion of the Court of Appeals, said: If the private citizen at any time encroach with his buildings and enclosures upon the public streets, the munici

City of Fort Smith v. McKibbin.

pal authorities should, in the exercise of proper vigilance and of their undoubted authority, interfere by the legal means provided in their charter, to prevent such encroachment in due time, and thus preserve for public use the squares, streets and alleys of the town, in their original dimensions; but if a private individual, or citizen, has been permitted to remain in the continued adverse actual possession of public ground, or of a public street, or of part of a street, as embraced within his inclosure, or covered by his dwelling or other buildings, for a period of twenty years or more, without interruption, such citizen will be vested thereby with the complete title to the ground so actually occupied by him; and a title, thus perfected by time, will be just as available against a municipal corporation as it would be against an individual, whose elder title and right of entry may be barred by a continued adverse possession for twenty years of his land; a municipal corporation, or any other artificial body vested with corporate rights and functions, has no more right than a natural man to claim the benefit and advantage of the maxim nullum tempus occurrit regi.' The same doctrine was held in Alves, etc., v. Town of Henderson, 16 B. Monr. 131.

"In Clemants v. Anderson, 46 Miss. 581, it was held that the maxim nullum tempus, etc., in analogy to the reason and policy of the principle, should be extended in America to those organisms of government, which have the attri butes of sovereignty, as the United States and the several States, and not to those local bodies, such as cities and counties, which are derivatives and emanations of the sovereign, created for the purposes of local convenience, subject at all times to be changed and modified at the pleasure of the government.

"In County of St. Charles v. Powell, 22 Mo. 525, the court held, that 'immunity' (from the effect of limitation statutes) 'however it seems was even at common law an attribute of sovereignty only, and did not belong to the municipal corporations or other local authorities established to manage the affairs of the political subdivisions of the State.' To the same effect is School Directors of St. Charles Township v. Goerges, 50 Mo. 194.

In City of Cincinnati v. Evans, 5 Ohio St. 594, it appeared that in the year 1852 the city, by order of the city council, removed the front of a store house belonging to Evans on Main street, in which he was carrying on the business of a merchant tailor. Evans brought an action against the city to recover for the injuries sustained by the removal of the front of his building, and the consequent interruption to his business. It appeared from the bill of exceptions, taken at the trial below, that the plaintiff produced evidence tending to show that he erected his building on what was then supposed to be, and which he still contended to be, the original line of the street; and that the line was 'given by the city surveyor;' that the houses both above and below him were built upon the same line with his house; and that he had occupied the ground since 1822. This evidence was objected to and the objection overruled and the evidence permitted to go to the jury, to which ruling the defendant excepted. On the other side evidence was produced going to show that Evans had built over the original line of the street, as laid out by the original sur vey; that this line was established by well-known corners, land marks and VOL. XLVIII — 5

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secondary monuments; that it had been built as far back as 1818, and that the Evans building, at the time of the removal of the front thereof, was over the line of the street and in the street; and that only so much thereof was removed as projected over and into the street. The court instructed the jury substantially, that whatever had been the original line of the street, if the plaintiff had for more than twenty-one years held and occupied the ground adversely to the city, claiming it as his own, the city had no right to disturb him in his possession. The verdict was for the plaintiff and judgment entered thereon, to which judgment the defendant, the city, obtained a writ of error. In delivering the opinion of the court, RANNEY, C. J., cited Lessee of Cincinnati v. First Presbyterian Church, 8 Ohio, 298, and made the language of the court in that case his own, which is: That municipal corporations are subject to the operation of the statute of limitations in the same manner and to the same extent as natural persons, and as a consequence that notorious and uninterrupted possession by a private individual, under a claim of right, of land dedicated to a city for streets or public squares, for more than twenty-one years, will bar the claim of the city to its use.' He further said: This case in 8 Ohio), was decided in 1838, was fully argued by eminent counsel, and carefully considered by the court. In following it now, we not only yield the respect due to the decision of a court of last resort, which has so long been supposed to have settled the law, but with a full approval of the principles upon which it is founded.' These decisions were again approved in Lowe v. Kennedy, 13 Ohio St. 42.

· City of Peoria v. Johnston, 56 Ill. 45, was an injunction by Johnston to enjoin the city from taking possession of land about sixteen feet wide, then forming a part of complainant's inclosure between his house and Main street, in said city, and from making it a part of the street. The city answered, proofs were taken, and the injunction made perpetual. The only ground upon which the city claimed the right to a part of the complainant's inclosure was the dedication thereof by its former owner, Hale. The complainant had held undisturbed possession of the property for twenty-eight years prior to the institution of his suit. The city appealed, and the chief justice in delivering the opinion of the court, said: Conceding this highway was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the south-east of section 4, we are of the opinion that the adverse possession of the appellee, open and exclusive, as it has been, and the complete non-user of the easement by the public for more than twenty years, are a sufficient answer to the claim now made by the city. The decree was affirmed.

In C., R. I. & P. R. Co. v. City of Joliet, 79 111. 40, the judge, who delivered the opinion of the court, quoted the above language, and added: We would not be understood in making this citation, as sanctioning the language thus used in its full breadth, that in such case the mere non-user of the easement by the public for more than twenty years would bar the claim, but the reference is made as having pertinence here, under the facts of this case.'

There is one case in Virginia bearing directly upon this subject. City of Richmond v. Poe, 24 Gratt. 149. was an injunction obtained by said Poe, trustee, for Mrs. Bradley T. Johnson, to enjoin the city of Richmond from pro

City of Fort Smith v. McKibbin.

ceeding to widen Franklin street by extending its northern line so as to include a part of the lot held by said trustee. The ground on which he rested his claim to enjoin the city was that he and those under whom he claimed, had been in possession of said lot from 1809 to 1871, when the bill was filed. The city relied upon a dedication of the ground as a public street, prior to the time the oldest deed, under which plaintiff claimed, was executed. The injunction was perpetuated, unless and until the city should acquire the legal right to widen the street in the manner prescribed by law. From the decree perpetuating the injunction the city appealed. The chancellor who rendered the decree in the court below said: But in this case the ground was inclosed, and there was adverse possession for over thirty-five years acquiesced in by the city; and this would have destroyed the right of the city if it ever existed.' Judge MONCURE, who delivered the opinion of the court, referring to the opinion of the chancellor, which was made a part of the record in the cause, said: "That opinion covers the whole case, and strongly presents the principles upon which it rests, and as we entirely concur in it, we deem it sufficient to express such concurrence, without adding any thing to what is there said, or saying substantially the same thing in different words.' The decree was affirmed. As bearing upon the subject, see Manchester Cotton Mills v. Town of Manchester, 25 Gratt. 825.

"City of Pella v. Scholte, 24 Iowa, 283, decided in June, 1868, was a contest as to the right of the city to a certain plat of ground in said city designated on the plat thereof as Garden square.' The city filed a petition in equity, claiming against the defendants, the original proprietors of Pella, and who laid out the same, that the said Garden square' was dedicated to the public; and that the defendants, H. P. Scholte and his wife (his voluntary grantee), denied the public right, and obstructed the public enjoyment of the square; and prayed to have its right to the control of the square judicially established. The defendants answered denying the alleged dedication of the square to public use, and setting up the statute of limitation, averring eighteen years quiet, uninterrupted use and enjoyment of the square as their private property. Upon the issues thus made proofs were taken, and the court below dismissed the peti. tion, and the city appealed. Chief Justice DILLON, in delivering the unanimous opinion of the court, said: Under these circumstances, the question recurs, whether (assuming that there had been a dedication of the square in 1847 or 1848), the defendants may insist upon the bar of the statute of limitations. It will be assumed that the statute would not begin to run in favor of the defendants until the town or city was incorporatea, charged with the duty of watching, and possessed with the power of asserting and protecting the rights of the intended donor. The city was organized August 5, 1855. This suit to assert the right of the city to the square was not brought until February 26, 1866, more than ten years after the incorporation of the plaintiff. To actions of this character, though brought in equity, the ten years' limitation applies directly, or by analogy. This is not disputed by counsel. Rights of this character may be acquired by the public by the requisite Onstott v. Murray, 22 Iowa, 457. And it would seem reasonable that the public, with knowledge of its rights, and of the adverse claim

user.

*

City of Fort Smith v. McKibbin.

of an individual, may lose these rights in a similar manner. Of course it is well understood that statutes of limitation do not constructively apply to the State or sovereignty. But the principle has not, so far as we know, been extended to municipal or public corporations. On the contrary, it has been expressly held, that those corporations are within the statute of limitations the same as natural persons. Cincinnati v. The Church, 8 Ohio, 298, 1838; followed in Same v. Evans, 5 Ohio St. 594; see also, Rowan v. Portland, 8 B. Monr. 250, 258; North Hempstead v. Hempstead, 2 Wend. 109, 137; Denton v. Jackson, 2 Johns. Ch. 320, 338. Whether there may not be some limitations on this general doctrine, arising out of the want of knowledge of the public corporation or its officers, of its rights, or of the adverse right, to be asserted against it, we need not stop to inquire. For in this case the right claimed by the defendant has been openly asserted by him, and fully known to the city ever since its first organization. The present case is therefore a proper one for the application of the statute, or the principle of repose on which it rests.'

"This is the same Judge Dillon, who not long after the above opinion was announced published his excellent work on Municipal Corporations,' in which he says, in section 533: The author cannot assent to the doctrine, that as respects public rights, municipal corporations are within ordinary limitation statutes. It is unsafe to recognize such a principle.' What new light had dawned upon the distinguished judge after he had written his lucid opinion in Pella v. Scholte? He certainly had not ascertained that the current of the decisions on the subject was against him; for the review we have made of the authorities cited in his notes shows, that to sustain his opinion they are as a river, while to support the text in his work they are as a rivulet. We think he was right in his opinion, and wrong in his text-book. The judge in this case is better than the author.

"Judge Dillon in section 533 of his work, gives as a reason why no laches on the part of a municipal corporation, or its officers, can defeat the right of the public to public streets and places, that such corporation does not own and cannot alien such public streets or places. But we think this reason is not sound. The doctrine of adverse possession does not result from a presumption after a long lapse of time, that the party, against whom the adverse possession is held, has granted the property to the party in possession; but it is held under a claim of title independent of the party, who originally owned the land. As the maxim nullum tempus, etc., only applies to sovereignty, and the sovereign cannot transmit it to persons or corporations, a municipal corporation cannot claim exemption under it, any more than a natural person, although it may hold property in trust for the public.

"As we have seen, the courts of last resort in the States of Pennsylvania, New Jersey, Rhode Island and Louisiana, have held that the maxim nullum tempus occurrit regi is not restricted in its application to sovereignty, but that it applies to municipal corporations, as trustees of the rights of the public: while on the other hand, the highest courts of Vermont, Massachusetts, New York, Connecticut, Maryland, Virginia, North Carolina, South Carolina, Mississippi, Texas, Missouri. Kentucky, Ohio, Illinois and Iowa, have restricted the application of the maxim to sovereignty alone; and most of said courts