MILLIKEN v. SMITH

MILLIKEN v. SMITH
1926 OK 863
251 P. 84
120 Okla. 211
Case Number: 17014
Decided: 10/26/1926
Supreme Court of Oklahoma

MILLIKEN et al.
v.
SMITH.

Syllabus

¶0 1. Boundaries--Plat of Lots, Blocks, Streets, and Alleys--Interpretation. Where a party files a plat of certain lots, blocks, streets, and alleys, the intention of the owner in making the plat is to be ascertained from all the marks and lines appearing thereon, and, if possible, such an interpretation should be followed as will give effect to all the lines and statements.
2. Evidence -- Parol Evidence to Explain Unambiguous Plat. Parol testimony is inadmissible to explain or modify an unambiguous plat.
3. Appeal and Error--Change of Theory of Case After Trial. A party to an action, having presented his case or defense to the trial court upon a certain and definite theory is bound thereby throughout the subsequent stages of said cause.
4. Injunction--Adequate Remedy at Law--Fraud in Sale of Real Estate. The remedy for misrepresentation in the sale of real estate is by action to rescind or by suit for damages and not by injunction, the remedy being adequate at law.

Burford, Miley, Hoffman & Burford, for plaintiffs in error.
Lewis P. Mosier, for defendant in error.

PINKHAM, C.

¶1 The defendant in error, T. E. Smith, plaintiff below, alleges in his petition that he is the owner of lots 1 and 2, block 6, Palmer Highland addition to the city of Pawhuska, and has his dwelling and residence thereon; that said lots are bounded on the east by Bigheart avenue, and on the north by north boundary reserve No. 2, making his lots on the corner with streets on the east and north; that plaintiff has lived on said premises for many years, and during all the time the said north boundary reserve, No. 2 has been used, treated, and considered one of the street reserves of said addition, and is so marked and platted; that at the time of the purchase of these said lots this plaintiff was informed by the defendant Minton, that they were corner lots, and that said north boundary reserve No. 2 was a public highway, and reserved and dedicated for that purpose; that said statements were made to this plaintiff as an inducement to get him to purchase said lots; that notwithstanding the fact that said north boundary reserve No. 2 is one of the public highways of said addition, and that the same is so marked and designated on the plat of said addition now on file in the office of the county clerk of said county, said defendant James Milliken is now about to construct a building on said reserve directly to the north of and adjoining the premises of this plaintiff to his great damage; that said James Milliken claims to be acting through some right given him by said defendant Minton, and that said Minton claims to be the owner of said reserve; that as abutting property owner this plaintiff is the owner of a reservation in the entire width of said reserve, and for the entire length of his said lots.

¶2 Plaintiff prays that he may have judgment forever enjoining the defendants from using or attempting to use any part of said north boundary reserve No. 2 inconsistent with its use as a public highway. The defendants in their answer deny all of the allegations in the plaintiff's petition, and for further answer and defense, allege that the land described in the plaintiff's petition was never dedicated to the city of Pawhuska, or the public, for public use as a street, and, further, that the plaintiff is estopped to deny the title of the defendants, or to claim that said real estate constitutes a street or public highway. The case was tried before the court, and at the close of plaintiff's evidence the defendants demurred thereto, which demurrer was overruled. At the close of all the evidence the court made the following findings of fact: First, that the strip of land designated upon the plat of Palmer Highland addition to the city of Pawhuska, Okla., as north boundary reserve No. 2, has never been dedicated as a public street or highway, to which finding the plaintiff excepted; second, the court further finds that the said plat is unambiguous, and finds from the face of said plat that the said tract of land, designated as north boundary reserve No. 2, was reserved by the grantors to themselves at the time of the dedication of said plat with the intention at sometime in the future, if an addition should be platted to the north of said land, of dedicating the said strip of land to the public as a part of the public street; to which finding the plaintiff excepted; third, the court further finds that at the time of the sale of lots adjoining and abutting on said strip, the proprietors of said addition represented to said purchaser that said strip was reserved for the purpose of making a street when property to the north thereof should be platted, to which finding the defendants excepted.