W. Howard Thompson, of Georgetown, for plaintiff.
Houston Wilson, of Georgetown, for defendant.
BRAMHALL, Vice Chancellor.
Defendant has raised certain legal [33 Del.Ch. 53] objections to the complaint of plaintiff. Plaintiff, in turn, has moved to have the sufficiency of these objections determined. The points for determination are:
1. That there is a substantial dispute as to the title of the property on which the house of the defendant is situate and that therefore this court should not take jurisdiction until that issue has been determined;
2. That this action is a public action and that the attorney general is therefore a necessary and indispensable party;
3. That the State of Delaware is an indispensable party;
4. That the land in question has never been laid out, dedicated, opened and used as a public highway;
5. That the order of the Chancellor for substituted service was improper and the service was not in compliance with the provisions of the statute and was in violation of the law of 'due process'.
The complaint alleges that the plaintiff is the owner of certain lots abutting McKinley Avenue, at Dewey Beach, Lewes and Rehoboth Hundred, Sussex County, Delaware, known as Lots 2 and 4, Section 13, on the plot named 'Indian Beach'; that the defendant is the owner of a house situate in the bed of the public street known as McKinley Avenue and located between the plaintiff's house and the main-traveled portion of McKinley Avenue; that the development of which these properties are a part was originally under the control of the Public Lands Commission of the State of Delaware, which control was later by Act of the Legislature transferred to the State Highway Department of the State of Delaware; that a plot was made of these lands, which was duly recorded; that public sales were held of these lots, the plaintiff being a purchaser at one of said sales; that McKinley Avenue is a public highway and has
1. Defendant avers that she is the owner of a lot upon which her house is situate by reason of adverse possession for a period of more than twenty years. She contends that before plaintiff may proceed with this action the question of her title must first be determined by a court of law.
As a general rule, equity will not determine title to real estate. Green v. Cowgill, 30 Del.Ch. 345, 61 A.2d 410. However, in this case, plaintiff does not claim title to the property claimed by the defendant. Plaintiff contends that the lot is a part of McKinley Avenue, and that, since his lot abuts on McKinley Avenue at the point of the lot claimed by defendant, the house of the defendant constitutes an obstruction and deprives the plaintiff of his right as an owner of a lot abutting on said street. Plaintiff would therefore not be entitled to maintain an action in ejectment against the defendant. I know of no adequate remedy at law which plaintiff would have for the determination of the title to the lot claimed by defendant.
Plaintiff's complaint shows a need for possible equitable relief. Equity would therefore have jurisdiction.
Without deciding the right of this court to dispose of the dispute as to defendant's title, I feel that this is a question of fact which should be determined by a jury. Defendant's claim of ownership is based upon an alleged uninterrupted possession for a period of more than twenty years. This is disputed by plaintiff. The determination of the question would undoubtedly involve the taking of testimony of many witnesses, which testimony would perhaps be conflicting and irreconcilable. In the exercise of discretion, I therefore conclude that the petition should not be dismissed by reason of this objection, but that jurisdiction will be retained and an issue framed and sent to the Superior Court to determine by a jury the ownership of the lot claimed by the defendant.
2. Defendant says that any action such as has been instituted in this case must be begun by the attorney general. It is true that there are public rights involved and that the attorney [33 Del.Ch. 55] general is a proper person to institute an action for the protection of public rights. Reinhardt v. Chalfant, 12 Del.Ch. 214, 110 A. 663. But an individual, provided he can prove special damage other than damage which may be claimed as a public right, may institute an action in hiw own name for the protection of his right. Poole v. Commissioners of Rehoboth, 9 Del.Ch. 192, 80 A. 683. See cases cited in Annotation in 60 A.L.R. 770. The action in this case is based upon the damage claimed by the plaintiff individually and not for an invasion of a public right. The sufficiency of such claim cannot be determined at this stage of the proceedings. I therefore conclude that the plaintiff, claiming special damages by reason of an alleged violation of his private rights, may bring his action in his own name.
3. Defendant contends that plaintiff cannot proceed in this case for lack of an indispensable party, namely, the State of Delaware. Plaintiff's action is against the defendant for the removal of the defendant's house. Since the house is situate on a part of the land shown on the plot as McKinley Avenue and since that street is under the jurisdiction and control of the State Highway Department of the State of Delaware, that department has been made a party to this proceeding. Plaintiff's complaint is against the defendant, whose house is upon the lot claimed by her, and the State Highway Department, which has control over the streets and highways. Therefore, as far as plaintiff's action is concerned, the State of Delaware is not a necessary party. However, defendant in her defense avers that defendant acquired title from the State
of Delaware by right of possession for a period of over twenty years. If the defendant should be unsuccessful in maintaining her claim of title, title would be in the State of Delaware. Therefore, in order that the question of the title to the lot may be determined and that all parties may be properly before the court, the State of Delaware should be joined as a necessary party to this action.
4. Defendant contends that there has never been a dedication of the lot claimed by the plaintiff as a part of McKinley Avenue. The Public Lands Commission of the State of Delaware,--to the rights of which the State Highway Department of the State of Delaware afterward acquired control,--had the tract of land in [33 Del.Ch. 56] question laid out as lots, recorded the plot therefor, upon which McKinley Avenue was laid out as a street. According to this plot plaintiff's lot abutted on McKinley Avenue at the point where defendant's house is now situate. The street was later improved by the State Highway Department throughout its full length up to the lot claimed by the defendant. At the time title was in the State of Delaware. Without determining whether or not, in view of the fact that the title to the street was in the State of Delaware at and immediately prior to the time of its dedication, the mere preparation and recording of the plot, together with public sales of the lots laid out thereon, would constitute a complete dedication of the street, it is sufficient to say that the improvement of the street by the State Highway Department and the use thereof by the public would constitute an acceptance by user. Poole v. Commissioners of Rehoboth, supra; Reinhardt v. Chalfant, supra; Fulton v. Town of Dover, 8 Houst. 78, 6 A. 633, 12 A. 394, 31 A. 974; State v. Southard, 6 Penn. 247, 66 A. 372. The question, if there should be such a question, of the extent to which there has been an acceptance of the dedication is primarily a question of fact to be determined at the trial of the case. See Johnson v. Town of Watertown, 131 Conn. 84, 38 A.2d 1.
5. Defendant contends that the order for publication was improperly issued and that the service upon her has not been in conformity with due process.
This is an action quasi in rem. The procedure is therefore covered by the first paragraph of 4374, Section 8, Chapter 117, Revised Code of Delaware 1935, and the Rules of this Court relative ...