(concurring).
I concur, but make the following observation. In the main opinion, reference is made to the “public easement” of Midvale City in the street which was closed. Under Sec. 78-5-4, U. C..A. .1943, the City has a determinable or limited fee which is a, higher right than an easement. That section provides, that the filing and recordation of maps cited even by defendants, that if the dedicated streets of a subdivision are laid out and right to the use thereof has *449arisen, a private easement arises therein which constitutes a vested proprietary interest in the lot owners, which easement survives extinguishment of any co-existing public easement calling for just compensation.8 Hence, Mr. B canno be cul-de-sacked by the city or the school board without due process of law, and a respect for any loss of use proven to have been enjoyed by him theretofore, — though such loss may hot be great. This is as it should be, since people customarily buy property in subdivisions, part of the consideration for which is paid on the representation and assumption that the platted streets, dedicated and duly accepted, shall continue as a means of travel until public exigency otherwise demands, — in which latter event due process and just compensation must enter the picture.
Defendants are not remediless. Midvale might have ended the public easement by ordinance so long as pertinent statutory and due process requirements were satisfied. The school board might have eliminated the private easement by orderly employment of the statutory provisions and fundamental principles relating to eminent domain,9 but neither could take from Mr. B his private easement without fair compensation.
In remanding this case, the trial court is instructed to enter an order requiring removal of any obstruction on the property described, unless the parties by stipulation amicably agree to maintain the status quo until such time as their differences may be resolved. There seems to be little and plats of a subdivision
“* * * shall operate as a dedication of all streets, alleys and other public places, and shall vest the fee of such parcels of land as are therein expressed, named or intended for public uses in such county, city or town for the public for the uses therein named or intended.” (Emphasis added.)
*450It is true that in the cases of Sowadzki v. Salt Lake County, 36 Utah 127, 104 P. 111, and Tuttle v. Sowadzki, 41 Utah 501, 126 P. 959, this court referred to the interest of the county in a platted subdivision as both a determinable or a limited fee and a public easement, using the terms interchangeably. But the terms are not synonymous. The confusion may have stemmed from Sec. 36-1-7, U. C. A. 1943, providing that
“By taking or accepting land for a highway the public acquires only the right of way and incidents necessary to enjoying and maintaining it. A transfer of land bounded by a highway passes the title of the person whose estate is transferred to the middle of the highway.”
Sec. 36-1-7 is found in our code in the title on Highways, whereas Sec. 78-5-4 is found under the title on Real Property and under the section thereof dealing with Plats and Subdivisions. Clearly, Sec. 78-5-4 governs the rights of a county, city or town in the streets of a platted subdivision. While it makes no difference in the instant case whether the City has a determinable fee or a public easement, the distinction is pointed out because there may be cases where the difference is vital. See White v. Salt Lake City, 121 Utah 134, 239 P. 2d 210.
Tuttle v. Sowadzki, supra.
Title 104-61, U. C. A. 1943.