Drimmel v. Kansas City

• Decision Date: 04 May 1914
• Docket Number: No. 10728.,10728.
• Citation: 180 Mo. App. 339,168 S.W. 280
• Parties: DRIMMEL v. KANSAS CITY.
• Court: Missouri Court of Appeals

168 S.W. 280

180 Mo. App. 339

DRIMMEL v. KANSAS CITY.

No. 10728.

Kansas City Court of Appeals. Missouri.

May 4, 1914.

Rehearing Denied June 1, 1914.

1. DEDICATION (§ 16) — COMMON-LAW DEDICATION — STREETS.

Condemnation, dedication by deed or under the statute, and prescription, are not the only methods of creating a street, for a street may be created by common-law dedication, which arises out of acts by the owner showing on his part an intention to dedicate.

2. DEDICATION (§ 16) — COMMON-LAW DEDICATION.

No particular formality is necessary to a common-law dedication of land for a street, thus the mere throwing open of land to public use as a street, coupled with the fact that others purchase in reliance on the existence of the street, is sufficient.

3. DEDICATION (§ 16) — COMMON-LAW DEDICATION — ESSENTIALS.

Time is not an indispensable element of a common-law dedication as in the case of prescription, and a dedication when accepted and acted upon is irrevocable, though the property dedicated has not been used as a street for the prescriptive period.

4. DEDICATION (§ 45) — COMMON-LAW DEDICATION — JURY QUESTION.

Whether there has been a dedication of land for a street is a question for the jury.

5. MUNICIPAL CORPORATIONS (§ 759) — STREETS — ACCEPTANCE OF DEDICATION — NECESSITY.

Until accepted, a municipality is not responsible for the condition of a street attempted to be dedicated.

6. DEDICATION (§ 35) — ACCEPTANCE.

The acceptance of a street dedicated to public use need not be express, but may be implied from the acts of a municipality in doing work thereon or recognizing it as a public street.

7. MUNICIPAL CORPORATIONS (§ 819) — STREETS — ACCEPTANCE OF DEDICATION — EVIDENCE — SUFFICIENCY.

In an action for injuries on a defective sidewalk, evidence held sufficient to show an acceptance by the municipality of the dedication of the street.

8. MUNICIPAL CORPORATIONS (§ 761) — STREETS — DUTY OF CITY.

Where a city accepts the dedication of a street, and it is graded and a sidewalk placed thereon, that is an invitation to the public to use it, and the city is bound, regardless of who placed the sidewalk there, to maintain it in a reasonably safe condition for travel.

9. APPEAL AND ERROR (§ 1170) — REVIEW — HARMLESS ERROR.

In an action for injuries received upon a defective sidewalk, the error of an instruction in misstating the place of the accident is not reversible, under Rev. St. 1909, § 2082, prohibiting reversals for immaterial errors, where the context showed that the place intended to be referred to was the point of the accident.

10. MUNICIPAL CORPORATIONS (§ 822) — STREETS — INJURIES UPON DEFECTIVE STREETS.

In an action for injuries received upon a defective sidewalk, where the evidence showed that the defect had existed long enough to enable the city to know of it and to repair it, and there was no evidence to the contrary, an instruction on the liability of the city is not erroneous because failing to inform the jury that it was entitled to a reasonable opportunity after knowledge of the defect to repair it.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Ida Drimmel against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

A. F. Evans, of Kansas City, for appellant. J. K. Stickney, L. A. Laughlin, and Davis & Holmes, all of Kansas City, for respondent.

TRIMBLE, J.

A suit against the city for injuries sustained by a fall caused by a defective sidewalk. Plaintiff is a married woman, and, at the time of her fall, was living with her husband and family at 3817 State Line street in Kansas City, Mo. The line between the states of Kansas and Missouri is in the middle of the street, and from this fact comes the name State Line street. Plaintiff lived on the east or Missouri side of said street. There is no dispute over the fact that plaintiff fell and was injured on a defective plank sidewalk. This sidewalk was in front of plaintiff's residence. There was evidence tending to show that the walk had been in a dilapidated condition for a long time. It had been built more than eight years prior to the injury. One witness testified to its defective condition one month before the accident, another said it had existed for a year, and still another said such condition had existed for two years prior to plaintiff's hurt. During the month next preceding the plaintiff's fall, the walk had sunk down on the side next to the property line leaving the walk in a slanting position. Plaintiff had not been out of the house during this month, having been confined to her room with an attack of measles. There was a demurrer to the evidence which the court overruled. The jury awarded $1,500, and defendant appealed.

The first and principal contention made by defendant is that there was no evidence that the street at the point where plaintiff fell was a public street of the city in the sense that the city was under any obligation to keep it in reasonably safe repair. Stated a little more clearly, the contention is that there is no evidence that the city had accepted the street in controversy, or that it had exercised such jurisdiction and control over it as imposed upon the city the duty of keeping it in repair and rendering it liable for a failure so to do. The evidence did not show just how State Line street was originally established. There was no proof of condemnation nor of a statutory dedication, nor was the evidence sufficient to establish the street by prescription, because those who testified were not acquainted with the street long enough prior to plaintiff's fall; their knowledge lacking a few months of covering the necessary ten years' user by the public. Defendant contends that the only methods of creating a street are by condemnation, dedication by deed or under the statute, and by prescription. And that since there is no evidence of the first two methods, no street was shown to have been established, as the time covered was not long enough to create one by prescription. It is true mere user alone for any period short of ten years will not create a street by prescription. But we do not agree with defendant that the above-enumerated methods are the only ways in which an owner of land may dedicate it to public use as a street. He may do so by a valid common-law dedication; that is, by acts in pais which evince an intention on his part to dedicate. Meiners v. City of St. Louis, 130 Mo. loc. cit. 284, 32 S. W. 637. No particular formality is necessary; it may be made by any act of the owner showing an intention to dedicate which is the vital principle in dedication. Time is not an indispensable element because, if the dedication is accepted and used by the public in the manner intended, the dedication is complete, precluding the owner from revoking the dedication. Whether a common-law dedication has been made is therefore a conclusion of fact to be drawn by the jury from the circumstances of each particular case. 9 Am. & Eng. Ency. of Law (2d Ed.) 34. The throwing open of land to public use as a street, without other formality, is sufficient to establish the fact of dedication to the public, and if individuals, in consequence of this act, become interested to have it continue so, as by purchasing property abutting thereon, the owner cannot resume it. Abbott v. Mills, 3 Vt. 521, 23 Am. Dec. 222. All that is required is the assent of the owner and the use of the premises for the purposes intended by the appropriation; the law creates out of the owner's act, in such case, an estoppel in pais and precludes him from revoking the dedication. Morgan v. Railroad, 96 U. S. 716, 24 L. Ed. 743. The difference between prescription and common-law dedication lies in the ingredient of time. To establish dedication by prescription in this state, user for ten years must be shown, and nothing short of that will suffice; but a valid common-law dedication may be shown by an act of dedication and of the animus dedicandi without reference to the period of use. 22 Am. & Eng. Ency. of Law (2d Ed.) 1186. For example, opening on the ground a street or highway and selling lots fronting upon such street and which are accessible only thereover will constitute a common-law dedication of the land covered by the highway to public use, irrevocable so far as the purchasers of the lots are concerned and also irrevocable so far as the general public is concerned because the rights acquired by third persons under such a common-law dedication will operate in favor of the public as well as of such lot owners. Heitz v. City of St. Louis, 110 Mo. loc. cit. 624, 19 S. W. 735; Buschmann v. City of St. Louis, 121 Mo. 536, 26 S. W. 687.

Of course, this will not bind the city to accept it as one of the streets of the city and become responsible for its maintenance. That burden is not imposed upon the city until it has in some way, either expressly or by implication, recognized it as a city street and invited the public to use it as such. We do not mean to intimate that the city can be held liable in the absence of such evidence. What we have reference to here is that, where there is evidence from which a valid common-law dedication of a street can be reasonably inferred, then, if there is also evidence, from which the city's recognition of that street as a city street and its invitation to the public to use it as such can be implied, the mere fact that such common-law dedication may not have existed for ten years will not relieve the city. Of course, unless there is something to show an intent on the part of the owner of the street to make a valid common-law dedication thereof, there must be user by the public for ten years, with his knowledge, to supply the lack of such evidence.

"But when the intent to dedicate clearly appears, acceptance may be established by user for a period of less than ten years depending upon the purpose and extent for which used." Milling Co. v. Riley, 133 Mo....