
    The Euclid Ave. Christian Church et al. v. Adams et al.
    
      Real property — Title to alley improperly dedicated — Adjoining owner receiving quitclaim deed acquired only title of grantor — Quitclaim deed to church from owner platting land and dedicating alley.
    
    1. In action by church to quiet title to strip of land used as alley, which church acquired by quitclaim deed from former owner, church, occupying land since deed in same manner as for 35 or 40 years prior to quitclaim deed, could acquire no better title than owner had at time of deed.
    2. In action to quiet title to strip of land claimed by church under quitclaim deed from owner, evidence that strip was included in recorded plat of land as an alley, that no taxes were paid thereon, and that owner reserved no interest therein, showed intention by owner to make strip an alley, though not called such in plat, and surrender of all of title thereto on recording of plat, regardless of whether it was common law or statutory dedication, and hence church acquired no title to strip of land other than that of its grantor.
    (Decided November 22, 1926.)
    Appeal: Court of Appeals for Cuyahoga county.
    
      Messrs. Snyder, Henry, Thomsen, Ford & Sea-grave, for plaintiffs.
    
      Mr. Roscoe M. Ewing, Mr. Chas. A. Niman, and Mr. Carl Shuler, for defendants.
   Vickery, J.

This cause comes into this court on appeal from the common, pleas court of Cuyahoga county. In the court below the Euclid Avenue Christian Church, which is located at the corner of Euclid avenue and East 100th street, in the city of Cleveland, being the southwest corner, brought an action against the defendants, the appellants, to quiet title to a strip of land 20 feet in width, running back to the full depth of the properly owned by the church on the corner, the alley or strip of land being located between the church and property of some of the defendants, immediately south thereof.

It seems that prior to 1866 one Worthy Streator, better known as Dr. Streator, a prominent wealthy citizen of what was then East Cleveland township, now a part of the city of Cleveland, owned quite a tract of land on both sides. The homestead, which he for years occupied, was on the north side of Euclid avenue. He owned on the south side of Euclid avenue a U-shaped parcel of land running down East Ninety-Sixth street south a distance from Euclid avenue, and running down East 100th street south of Euclid, and connecting the two streets by lots of other persons on Euclid avenue.

About 1866 Streator gave a piece of property on the corner of Euclid avenue and East Ninety-Seventh street, the southeast corner, to the Euclid Avenue Congregational Church, upon which was erected the Congregational Church which I believe now occupies that site. In this connection he platted this parcel of land that he owned on the south side of Euclid avenue, and had a plat of the addition so called made, and this plat showed that at the corner of East Ninety-Seventh street and Euclid avenue, back of the lot that he had donated to the Congregational Church, there was an alley 20 feet in width running the full width of the lot he donated to the Congregational Church. At about the same time he caused to be sold lot No. 14, upon which the Christian Church is now located,, to himself and others, as trustees of the Christian Church. This lot No.' 14 was 133 feet front on Euclid avenue and 200 feet deep, and immediately back of this tract of land thus conveyed to the trustees of the Christian Church, of which he was one, lay a narrow strip of 20 feet, and immediately south of that was lot No. 13, which belongs to the defendants, and other lots were named and the dimensions of the lots were given in feet in every instance on the plat.

This plat was filed for record, but it had not been acknowledged or sworn to, as the law requires. The church trustees, of which Streator was one, took possession of the property, and at that time a church was erected, and subsequently the present structure was built upon that lot.

During all the time from 1866, down to, and including 1901, this strip of land between the church property and the property of the defendants immediately south thereof, or between lots 14 and 13, had never been placed upon the tax duplicate. It in fact was taken off the tax duplicate when it was platted, and was treated by all the parties as a public place. The mouth of the so-called alley was left open so as to show a demarcation. The church people had hitching posts upon this narrow strip, and it has been used by the owners of lot No. 13 for ingress and egress to the back part of their lot from the time of the recording of the plat down to the present time.

About 1901, Dr. Streator being still alive, the trustees of the Euclid Avenue Congregational Church desired to enlarge their structure, and, needing to use the alley for that purpose, went into the common pleas court of this county, and asked leave to vacate this alley. After a hearing, the alley was vacated, re-established, and rededicated a few feet further south, and the fixed alley was thereupon determined. This is ■ only interesting and worthy of comment because it shows how the trustees of the Congregational Church, during the lifetime of Dr. Streator, regarded this alley, that it had become a part of the public streets of the city of Cleveland, and that Dr. Streator had lost all interest and title to the property.

In 1901, apparently, the record shows that this matter about the alley running back to the Congregational Church had been called to the attention of the trustees of the Christian Church and some _ discussion took place among the trustees of the Christian Church, whereupon Dr. Streator, who was still alive, was asked to deed this strip of land to the Christian Church. Whereupon Dr. Streator gave a quitclaim deed to this strip of land 20 feet from East 100th street, running west back across the full depth of lots Nos. 13 and 14, and the strip of land which separated these two lots one from the other, to the Christian Church. I believe the record shows that the Christian Church underground went over into this 20 foot strip some, but nothing interfered with the right of ingress and egress to the owners of lot No. 13, and they used it in the same way that it had been used from its platting down to the present time.

Ultimately the Christian Church brought an action in the common pleas court to quiet title to this strip of land, and made those parties interested by being the owners of the fee or leasehold of lot No. 13, and the owners of the properties on the west, parties to the suit, and some of these parties in the city of Cleveland, because this was seeking to close what they regarded as a public alley, made the city of Cleveland a party, whereupon the city of Cleveland filed an answer and cross-petition claiming this strip as a public alley of the city of Cleveland.

At the trial of the case below, much evidence was introduced, and very able, and, one might say, ingenious, briefs have been filed to sustain the contention of the church that it is the owner of this property and is entitled to maintain its suit to quiet title. Of course, the church can only have the title that it received from Dr. Streator by the quitclaim deed of 1901. If Dr. Streator did not have the title to the property, the church did not have anything better, because their occupancy since 1901 has been practically the same as it was for 35 or 40 years before that time.

Did Dr. Streator, then, have any title to this property in 1901? It is argued that there is no statutory dedication because it was not sworn to and acknowledged, as the law requires, and ingenious argument is used to say there could be no common-law dedication. We think the record in this case shows without any question that Dr. Streator intended to have an alley here. It was upon the plat, and the plat was recorded. The parcels of land between which it is situated were both designated by dimensions. Dr. Streator retained no interest in any of the property whatever. From that time down to 1901 no taxes were ever paid upon this strip of land. No taxes have been paid upon it since. It is clearly evidenced by this record that Dr. Streator not only intended to, but did, mark out an alley, and so designated it upon the plat, though not calling it an alley. He undoubtedly had in mind that at some time there should be an alley clear across, and that the property owners on Euclid avenue would some time consent to have the alley extended across their properties. However that might be, he meant to have this alley back of the church between lots Nos. 13 and 14, and he gave up all right and title that he had to the strip when he recorded this plat, and it is immaterial to show whether it is a common-law dedication or a statutory dedication. The rights of Dr. Streator had ceased to exist prior to 1866, and he had no title or interest in this property other than he might have as a trustee of the church, which had a right to see that this alley was kept open for its use and the use of the property on the other side, but, so far as any title remaining in him, he had none in 1901, and, that being so, the church could acquire no title other than his.

It is interesting to note that Dr. Streator gave a quitclaim deed. Of course, he was perfectly willing to be a good fellow to the church in which he was a trustee, patron, and perhaps a communicant, and, so far as he was concerned, to quitclaim his interest. If he had any, all right; and if he did not have any, all right. However, it will be noticed he gave no warranty deed, warranting his title.

We think under all these circumstances, and the authorities are abundant which have been cited to us in the briefs of the defendants to sustain our contention, that the plaintiff is not entitled to the relief it seeks, and a decree may be entered for the defendants.

Decree for defendants.

Levine, P. J., and Sullivan, J., concur.  