City of Hannibal v. Draper

• Citation: 15 Mo. 634
• Parties: THE CITY OF HANNIBAL v. DRAPER.
• Decision Date: 31 March 1852
• Court: United States State Supreme Court of Missouri

15 Mo. 634

THE CITY OF HANNIBAL

v.DRAPER.

Supreme Court of Missouri.

March Term, 1852.

RICHMOND & LAMB, for Appellant. The plat, when filed by Glascock, operated as a dedication of the lots in question, to the county of Marion, for “““public uses,” according to the provisions of the act of the Legislature, entitled, “An act concerning Towns and Villages,” approved February 20th, 1835. See Rev. Stat. 1835, p. 599, the law governing the case. By the first section of this act, it is, in effect, enacted that the proprietor of the town or village shall, in the plats which he files, particularly set forth and designate: First, all the parcels of ground within such town reserved for public purposes by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons or other public uses. Second, all lots intended for sale by numbers, and their precise length and width. By the act, all the grounds “laid out” by or on the plat, are comprised in these two divisions. Now, upon the plat filed by Glascock, and in evidence here, he plainly shows what lots are, and those which are not “intended for sale.” Those “intended for sale” are designated by their numbers, and their precise length and width and by no other designation. Those lots, not intended for sale, but reserved for “public purposes,” have other and distinct designations which cannot be mistaken. It strikes the mind as palpably, on looking at the plat, that Glascock did not intend the lots, marked “church ground,” for sale, as that he did not intend the ground marked “public square” for sale. On the margin of this plat, and among other dedications to public uses, even in the same sentence which sets apart the public square, are found these words: “Lots 2, 3 and 4 in block 26, are intended for church ground.” These lots are then crossed with red lines, and made conspicuous on the plat in the same manner as the public square. “Church ground” is written in plain words across these lots, and the street passing by them named “Church street.” It is not more plain from the plat, that “Church street” or “Bird street” was intended not to be private property, than it is that the lots in question were not intended for private property, or to be sold and used as such. If not liable to sale, they are public property, and the intention of the proprietor to set them apart for public religious purposes and uses, at the time of filing the plat, is shown beyond controversy. Persons buying property and settling in the town, after said plat was filed, bought with the understanding that the lots in question were for public, and not for individual use. Those grounds designated on the plat as not for sale, but for “public use,” are by the filing of the plat, vested, in fee-simple, in the county within which the town is situated. See section 4 of the act above quoted, Rev. Stat. 1835.

But do the words “church ground” sufficiently specify the manner in which the public can use the property so as to make the dedication effective? We contend, that the description is sufficiently specific, and that the ground dedicated may be used by the public practically and within the true intent and meaning of the grantor, as shown by his map and the writing thereon. “Church ground” evidently means, as used here, ground appropriated for the purpose of religious worship or pious use. A grave yard is called a “church yard” whether it be near or distant from a church building. Glascock, himself, on the plat calls a burial ground a church yard, though no church is near it. A graveyard is not private property, but belongs to the great “Republic” of the dead. Such property for public uses is essential to a city, and a graveyard is “church ground.” Upon these three lots, each 65 1/2 by 142 feet, several large churches might be built for the purpose of public worship, by the various Christian sects, with proper regulations as to the time of using them, made by the city authorities. This is not only practicable, but a thing to be desired. A church, for the use of the poor would be a public benefaction, and these lots, or some part of them, could be well used therefore, with no violence to the dedication. A Sabbath-school, the erection of a “Republican Meeting House,” on the appropriation of the ground by the public, in any way, for religious worship, would be within the meaning of the grant. It were a shame to say that a city in Missouri could not appropriate, properly, a lot of ground devoted to the public for religious purposes.

The non-user by the public or the city, for some fifteen years, cannot revest the title in Glascock, more particularly under the circumstances. The evidence shows, that Hannibal has been since 1836, till lately, a very small city; that she is now increasing and may hereafter contain a large population. She has wisely waited, in appropriating this ground, till her population and means will enable her to use it with effect for the public good. Surely nothing less than a non-user for twenty years could avail Glascock or his vendee. The failure to list this property for taxation, by Glascock or any other person, and that it has not been taxed at all, shows that it was considered and held as public property and therefore not taxable.

It is contended that Marion county, and not the city of Hannibal should have been the plaintiff. By the 10th section of the 8th article of the act incorporating the city of Hannibal (see Private and Local Laws of 1845, p. 126), it is enacted that all property privileges and rights real and personal theretofore belonging to and vested in the town of Hannibal or county of Marion for the use of the inhabitants of said town, should be vested in the corporation of said city of Hannibal. It was certainly not intended by the 4th section of the act concerning Town Plats, that any beneficial, exclusive interest should vest in the whole county, from the town plats filed, unless so specified in the plat, or that the county should control the public grounds designated. It could not have intended that the county or County Court should always control the public landing, streets and public square, in Hannibal, for county purposes--Hannibal has never been the county-seat.

The public uses, contemplated by the statute, were for the immediate benefit of the citizens of the town, and indirectly for the public generally, including the traveling and commercial community, from all quarters. But if the county still has an interest nominally as trustee, the court below should have allowed the city of Hannibal as plaintiff, to make the County Court a party to this suit, in order that all difficulty, as to the title, might be settled. The citizens of Hannibal, being the principal beneficiaries, might sue. See 3rd article of the act “to reform the pleadings and practice in courts of justice in Missouri,” particularly the 1st and 10th sections of said 3rd article.

REDD & LAKENAN, for Respondent. That the plaintiff's title is defective in the following particulars, and that no title passes under the 1st, 2nd, 3rd and 4th sections of the Rev. Code 1835, p. 599. That act requires, that parcels of ground, reserved for public uses should be described in a plat by boundaries, courses, and extent, and lots designated for sale, by number, length and width, These acts are required by the statute, on the part of the proprietor, as the evidence of his intent to divest himself of the title for the use and benefit of the public. The ground in this case, was not described, either by boundaries, courses or extent--the evidences of his intention, required by the act, do not exist in this case. But the evidence the act requires him to exhibit on the map, of his design to sell,...