draw their pleas of not guilty, and thereafter motions were made to quash the warrants and discharge the appellants; but these motions were too late, because, when made, the parties were no longer held upon the warrants.

The judgment of the district court in each case will be affirmed.

(34 Kan. 277)

BROOKS, Jr., v. CITY OF TOPEKA and others.1

Filed November 7, 1885.

1. MUNICIPAL CORPORATION-STREETS-PLAT OF ADDITION TO CITY.

Before a plat of an addition to a city will operate as a grant of streets thereon designated, it must be made, acknowledged, and recorded conformably to the requirements of the statute.

2. SAME-WHO MAY DEDICATE STREETS.

No one other than the owner, or some one authorized to act for him, can plat or lay out a town, or an addition thereto, so as to convey to the public for its use the streets and alleys designated on such plat.

H., who owned a tract of land adjoining the city, surveyed and platted an addition thereto, laying it off into lots with streets and alleys intersecting the same. A few days before acknowledging and recording the plat he conveyed a tract of land to L., the description of which included a part of the street as designated on the plat of the addition. After the plat had been duly acknowledged and recorded, L. sold land adjoining the addition, and which fronted upon the street in question, and in the conveyance referred to the plat previously filed by H., and also directed the surveyor who surveyed the land sold by him to lay it out so that it would be bounded by the street designated on the plat, and stated to parties interested that such street should remain open to the public use as platted. Held, that the unequivocal recognition of the plat by L. after it had been duly acknowledged and recorded, and his acts and declarations concerning the street, are sufficient evidence of an intention on his part to dedicate the land in controversy to the use of the public as a street. 4. SAME-FORMAL GRANT NOT NECESSARY-WHAT SUFFICIENT.

To constitute a dedication of land for a public street it is not essential or necessary that there should be a formal grant or written conveyance. Any act of the owner clearly indicating an intention to dedicate the land for public use, and its acceptance by the public authorities, is sufficient.

Error from Shawnee county.

Waters & Ensminger, for plaintiff in error.

A. B. Quinton and J. H. Moss, for defendants in error.

JOHNSTON, J. The question in this case is whether a certain strip of land, 320 feet long and 65 feet wide, is a part of Eighth avenue, in the city of Topeka. By the recorded plat of one of the additions to the city it appears to constitute a part of the avenue, but William H. Brooks, Jr., the plaintiff, claims that it has never been dedicated to the public, and that he is the owner thereof, and he brings this action against the city of Topeka, together with its engineer and street commissioner, alleging ownership in himself, and that the city and its officers were attempting and threatening to take possession of the same, and he asks that they may be enjoined from so doing. The district court found generally in favor of the defendants, and rendered

1 See note at end of case.

judgment in their favor. The plaintiff complains here that this judgment is not sustained by sufficient evidence, and is contrary to law. From the record it appears that in 1859 D. H. Horne was the owner of a quarter section of land lying immediately west of Topeka as it was then organized. In that year he surveyed and platted an addition to the city of Topeka on the northern portion of said tract, naming it "Horne's Addition," and making it conform in the matter of streets, alleys, blocks, and lots with the plan of the city of Topeka. The addition extended as far south as Eighth avenue, and by the plat this avenue is shown to be 130 feet wide, and to include the strip of land in controversy here. The plat, however, was not filed for record until February 11, 1862. Before the last-mentioned date, and on December 17, 1861, Horne and wife conveyed a tract of 33 acres lying south of the addition to D. L. Lakin. The deed of conveyance described this tract by metes and bounds, and defined the northern boundary to be the center of Eighth avenue as extended through Horne's addition. On November 21, 1867, Lakin, by metes and bounds, conveyed the land to the plaintiff. On December 1, 1869, the plaintiff conveyed this and other lands to William H. Brooks, Sr., and he in turn, on January 30, 1873, reconveyed the same to the plaintiff, who now claims to be the legal and equitable owner thereof. The plaintiff contends that while Horne intended and attempted to dedicate the land as a part of Eighth avenue, yet, having conveyed the same to Lakin, his grantor, before the acknowledgment and recording of the plat of the addition, there was no complete dedication by Horne, nor by any of the subsequent owners. Notwithstanding this fact, we think the testimony was sufficient to uphold the finding and judgment of the court below, that the land had been. dedicated to the public for a street by D. L. Lakin after it had been conveyed to him. It is conceded by the plaintiff that if Horne had owned the strip of land in dispute at the time of the acknowledgment and filing of the plat, there would be no question but that it would constitute a part of Eighth avenue. Horne not only made a plat upon which Eighth avenue was laid out as a street, but he sold lots with reference and according to such plat. And, so far as he is concerned, there is manifestly an unmistakable purpose to dedicate the land in question for a public street. There is testimony in the record that, from the time of the platting of the addition, the street, as laid out by him, was adopted and traveled by the public continuously for about 10 years without obstruction or question.

We shall assume, however, that there was no complete dedication of the land in dispute when it was conveyed from Horne to Lakin. Before the plat would operate as a grant of the land to the public for use as a street, it must have been acknowledged and recorded conformably to the requirements of the statute. And to make such plat effectual as a grant it must be made and acknowledged by the owner of the land. As before stated, the deed to Lakin had been executed

and delivered before the plat was acknowledged and recorded. Of course, Horne could not, by his plat, convey land to the public when the title thereto had already passed from him. The claim made by the defendants, and it appears to be well sustained by the testimony, is that there was an unequivocal recognition of the plat of Horne's addition by Lakin after it had been duly recorded and while the title to the land was in him; that his acts and declarations subsequent to the recording of the plat show quite clearly that he affirmed the plat which had been filed, and completed the dedication of Eighth avenue attempted by Horne, so far as it affected the land then owned by him. It may be observed that Lakin did not act blindly in the purchase of the land south of the platted addition. In the deed of conveyance from Horne and wife to him, the description of the land conveyed refers to the extension of the plan of Topeka upon the quarter section, a portion of which was therein conveyed, and there is testimony to the effect that Lakin was well acquainted with the plat of Horne's addition at the time of the purchase, and that he agreed that Eighth avenue should remain open for public use as designated on the plat. In a few days after it had been properly recorded, and on the thirteenth day of March, 1862, Lakin recognized and affirmed the plat so filed in a deed conveying two acres of the land to one Enoch Chase. After describing the tract conveyed by metes and bounds, the following additional description is found in the deed: "Commencing at the south-east corner of Buchanan and Eighth streets, on the plan of Topeka as extended upon Horne's addition to Topeka,' etc. It will be noticed that in addition to the recognition of the plat of Horne's addition he specifically locates the tract conveyed at the · corner of Buchanan and Eighth avenues. The strip of land in controversy lies immediately west of Buchanan street and north of this tract. By this description Eighth avenue was defined to be 130 feet wide, and to include the land in controversy. To strengthen this view, and to show Lakin's intention, there is the testimony of a surveyor named Whittaker, who surveyed the two-acre tract for Lakin, that he was directed to survey a tract which had Buchanan street for its western boundary and the south line of Eighth street for its northern boundary, and that Lakin and several others were present when the survey was made. An intention on the part of Lakin to surrender to the public, as a part of the street, whatever interest he had in the strip in controversy is sufficiently shown. There was no express grant by Lakin of this tract to the public for a street, but it is not essential or necessary that there should be in order to constitute a dedication. Any act of the owner clearly indicating an intention to dedicate the land for public use, and its acceptance by the public authorities, is sufficient. The action of Lakin in recognizing and referring to the plat of Horne's addition, in the conveyance to Chase, after the plat had been filed, and the sale of the two-acre tract of land, by which he makes it appear that Eighth street is 130 feet wide, and that the

tract sold faced upon Eighth street, and that the strip of land in controversy was a part of the street, indicates clearly a purpose upon his part to dedicate the strip to the use of the public for a street.

So far as the acceptance by the public is concerned, as before stated, there is testimony which shows that the avenue was accepted at that time by the public, and traveled as a public street for many years thereafter. There is contrary testimony upon some of these matters, but the plaintiff brings us nothing but the general finding of the court in favor of the defendant, and we must therefore infer that the material testimony which supports that finding is true. The plaintiff cannot be said to have purchased the land from Lakin without notice of the dedication. In addition to the notice imparted by the recorded plat, and the use of the street by the public, the deed from Lakin to himself makes special reference to the Chase deed, wherein Lakin had previously recognized and ratified the plat of Horne's addition. It is referred to in the following language: "Also excepting two acres out of said tract conveyed to Enoch Chase by David L. Lakin, by deed dated March 13, 1862, and recorded in volume 6, page 306, of Shawnee county records." Indeed, if there had been no formal dedication of the land by Lakin the action of the plaintiff subsequent to his purchase would have constituted very strong if not conclusive evidence of the dedication of the land for the purposes designated on the plat. Since he acquired title to the Lakin tract he has made numerous sales of land and town-lots in Horne's addition by reference to and in accordance with the recorded plat. Some of the lots thus conveyed by him faced upon Eighth street, and upon that portion of it which is now in dispute, and in each of them reference is made to Horne's addition, by the plat of which the strip of land now claimed by him is made to constitute a part of the street. But, in our opinion, a dedication of the disputed strip of land as a portion of Eighth avenue had been completed before the plaintiff acquired title from Lakin; and as it does not appear to have been vacated since that time, it must be held to constitute a part of Eighth avenue. judgment of the district court will therefore be affirmed.

VALENTINE, J., concurring.

The

HORTON, C. J. I fully concur in the judgment, but do not agree to all said in the opinion as to the reasons therefor.

NOTE.

Dedication of Land to Public.

It is well settled that in order to constitute a valid dedication there must be an intention to dedicate,-an animus dedicandi. Tucker v. Conrad, 2 N. E. Rep 803; Bidinger v. Bishop, 76 Ind. 245; Ross v. Thompson, 78 Ind. 90; Hall v. Baltimore, 56 Md. 187; San Francisco v. Canavan, 42 Cal. 541; Fisk v. Havana, 88 Ill. 208; State v. Welpton, 34 Iowa, 144; Cook v. Harris, 61 N. Y. 448; Downer v. St. Paul, etc., Ry. Co., 23 Minn. 271. "But the intention to which the courts give heed is not an intention hidden in the mind of the land-owner, but an intention manifested by his acts." City of Indianap

olis v. Kingsbury, 101 Ind. 201, 213; Lamar Co. v. Clements, 49 Tex. 347; City of Denver v. Clements, 3 Colo. 484; Gamble v. City of St. Louis, 12 Mo. 617; Morgan v. Railroad Co., 96 U. S. 716; Elizabethtown, etc., R. Co. v. Combs, 10 Bush, 382.

Dedications may be made in almost every conceivable way, Morgan v. Railroad Co., 96 U. S. 716; Godfrey v. Alton, 12 Ill. 29; and one who has negligently led the public to suppose that he has dedicated certain lands, and allowed rights to grow up upon the faith thereof, will be estopped to deny a dedication. Wilder v. St. Paul, 12 Minn. 192, (Gil. 116;) Ross v. Thompson, 78 Ind. 91; Morgan v. Railroad Co., supra; Glenwood Cemetery v. Close, MacArth. & M. 96; Redwood Cemetery Ass'n v. Bandy, 93 Ind. 246 · Dedication may be either statutory or according to the common law, and an incomplete statutory dedication may be a good common-law dedication. Fulton v. Mehrenfeld, 8 Ohio St. 440. Of course the manner of making and effect of a statutory dedication must depend on the particular statute. Whether or not there has been a commonlaw dedication in any particular instance is a conclusion of fact to be drawn by the jury, under proper instructions, from the circumstances of the case. Harding v. Jasper, 14 Cal. 642; Ward v. Farwell, 6 Colo. 66; Eastland v. Fogo, 58 Wis. 274; S. C. 16 N. W. Rep. 632.

(34 Kan. 285)

BOARD OF COUNTY COM'RS OF BARTON Co. v. NEGBAUR.

Filed November 7, 1885.

COUNTY-LIABILITY FOR COSTS IN CRIMINAL PROSECUTIONS.

Prior to the enactment of chapter 108 of the Session Laws of 1881 a county was not liable for costs in a prosecution wherein the accused was charged with a felony, but was convicted of only a misdemeanor that was included in such charge.

Error from Barton county.

Benjamin Negbaur brought an action in the district court of Barton county against the board of county commissioners of Barton county, and in his petition stated:

"Comes now the plaintiff, Benjamin Negbaur, and complains of the defendants, the board of commissioners of Barton county, Kansas, saying; that on or about the first day of May, 1879, complaint was made in writing before W. H. O'Dell, justice of the peace of Great Bend township, Barton county, Kansas, charging one C. II. Cason with embezzling the sum of $1,000; that said action was a criminal action in the name of the state of Kansas, as plaintiff, and was prosecuted by the county attorney of said county; that by the consideration of said justice of the peace said C. H. Cason was bound over to answer said charge in the district court for said county; that afterwards the county attorney of Barton county, Kansas, filed in said district court an information charging said C. H. Cason with embezzling the sum of $1,000; that at the September term of said district court, 1880, said Cason was convicted upon said information of embezzling $15, and a fine was imposed upon him by the court, and, by order of the court, the costs of the prosecution were taxed up to said Cason; that the following persons, in response to subpoena issued by the justice of the peace and the district court, respectively attended as witnesses for the state upon said courts the number of days hereinafter mentioned, and traveled the miles hereinafter set forth, and earned the fees herein fully set forth, to-wit, [here follow the names of the witnesses with the fees assessed for each;] that each of the above-named persons have transferred, assigned, and set over their claims for said fees to the plaintiff, who is now the owner thereof. Plaintiff says that a fee-bill, approved by the county attorney, as provided by law, was filed by the clerk of the district court of Barton county, Kansas, in the office of the county clerk of said county, and returned to the board of county commissioners of said county in October, 1880, which fee-bill shows the attendance, mileage, and fees of the abovenamed witnesses to be as heretofore stated; that upon the - day of

, 1880, an execution was issued upon said judgment for costs against C.