The opinion of the court was delivered by
Brewer, J.:
Plaintiff sued defendant in the district court, ¡alleging that he was the owner and in possession of lot No. 169, Kansas avenue, city of Topeka; that defendant claimed, some title thereto, which claim plaintiff sought to have; adjudged void. The case was tried by a judge pro tem.,, without a jury. Special findings of fact were made, and defendant’s claim to four-fifths of the lot, to wit, the north twenty feet thereof, adjudged void. Both plaintiff and defendant excepted to the judgment, and a bill of exceptions, preserves the testimony. Plaintiff made no motion to set aside the findings, or for a new trial, in the district court, butbrjngs the record directly here for review. Whether under such circumstances this court is. called upon to examine the testimony to see whether it supports the conclusions of fact, may be questionable. It is a question however which need not here trouble; us, for even a slight examination shows that the evidence in this case amply supports the conclusions. We do decide this,, however, that in a case like the present, where ’ r ? the plaintiff claims that the judgment in his favor is less than it should be, if the testimony supports the conclusions, and they require the judgment, we; shall inquire no further. If the plaintiff insists that other-facts were proven by the testimony, which would give him a, right to a larger judgment, he must first call the attention of the court below to the matter. Failing to do this, he-waives any right to call upon this court to find additional facts.
Plaintiff’s objection to the judgment is, that it does not-adjudge Giles’ claim of title to the south five feet of said lot,, also void. Now, as the burden of proof is with plaintiff, unless the conclusions of fact show affirmatively that Giles’ claim to these five feet was unfounded, no error appears, and the-judgment must stand. The court found that the defendant’s title Avas on a tax deed, regular in form, and based upon regular proceedings. As against this,, plaintiff urges that the land at the time of the tax proceedings belonged to the public, and Avas therefore not taxable.. It appears that the Topeka Town Association caused a litho graphic map or plat of the town to be prepared and distributed among the members before the same had been acknowledged or recorded, and before legal title to- the town site had been acquired. This plat was adopted by the association. On this map the property in dispute in this action, twenty-five feet front, was designated as lot 169. Before the acknowledgment of this plat, the president of the association, by direction of the trustees, erased the figures 169. This was done to provide for an alley twenty feet in width, and running through the north side of said premises. No new disposition was made of the remaining five feet. The plat thus changed was acknowledged and recorded. It is difficult to conceive upon what pretext the strip five feet in width can be claimed as public property. It was not included in the alley. It does not appear to have been conveyed or dedicated to any other public use. It -passed to the Town Association by their legal title, acquired in July, 1859. Until conveyed away by them it was their private property, and subject to taxation.
Again, it is claimed that if the five-feet strip was taxable it was not lot 169; that lot had been destroyed by the erasure of the figures; there was no property answering to such description; hence a tax deed conveying lot 169 passed nothing. The conclusions of fact present no such question as this. They find that the tax proceedings were regular, and conveyed to Giles a good title to this five-feet strip. How it was described in the tax deed does not appear in the findings. This would be sufficient to dispose of the question. But if we go beyond the findings and examine the testimony, it appears that in the tax proceedings the property assessed and sold was described as “lot 169.” That such a lot now exists, and embraces the five-feet strip, is evident. At least, unless it does exist, and embrace that strip, plaintiff has no cause of complaint here, or of action below, for all the property described in his petition is “ lot 169.” More than that, when the alley was in 1866 vacated, and the title of the city thereto relinquished, it was described as “the north twenty feet of lot 169.” The property was assessed fora series of years as lot 169. The dedication of four-fifths, or indeed any fractional part of a lot or block to public uses, does not necessarily deprive the remaining poi’tion of the previous number or name of the whole. This five-feet strip might for anything that appears in the testimony properly pass as lot 169 after the dedication of the remaining twenty feet to the use of -the public as an alley. The alley portion would of course lose its right to the number. It had ceased to be private property, and could no longer be described as a lot, or any portion thereof. These being the only objections raised to this judgment it must be affirmed.
All the Justices concurring.