City of Laddonia v. Day
| Decision Date | 01 June 1915 |
| Citation | 178 S.W. 741,265 Mo. 383 |
| Parties | CITY OF LADDONIA, Appellant, v. CHEEVER DAY |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.
Reversed and remanded.
Fry & Rodgers for appellant.
(1) The plat of Smith's Addition, together with the description of the surveyor and the dedication of streets and alleys duly acknowledged by J. P. Smith vested in Audrain county the fee simple title to the whole of Western avenue as located on the recorded plat. Sec. 10294, R. S. 1909; Sec. 6573, R. S 1879; Brown v. City, 128 Mo. 17; Railroad v Baker, 183 Mo. 322; Buschmann v. City, 121 Mo. 533; Hannibal v. Draper, 15 Mo. 634; Price v. Inhabitants, 77 Mo. 447. (2) The verdict is against the evidence. Western avenue, including that part in controversy, was conveyed by a proper instrument to the county of Audrain for the public. Defendant admits that, but claims the land described in the plat as Western avenue was not conveyed in fact, but other lands were conveyed. In other words, defendant attempts to set aside by oral evidence a solemn conveyance of real estate made in writing. Johnson v. Quarels, 46 Mo. 426; Kennedy v. Kennedy, 57 Mo. 73; Smith v. Smith, 201 Mo. 547. (3) It was the duty of Joseph P. Smith, as the proprietor of "Smith's Addition," to cause to be made an accurate map or plat thereof particularly setting forth and describing "all streets and alleys and all lots for sale, by numbers and their precise length and width." The law presumes he did his duty. Secs. 6569, 10290, R. S. 1909. (4) The deed from Farres to Bowman and from Bowman to defendant both convey Block Four "according to the recorded plat thereof." The recorded plat showed the lots to be only 114 feet long and the deed to defendant accepts and recognizes the plat and he is bound by it. Bast v. Mason, 165 Mo.App. 727; Jeffords v. Dreisbach, 168 Mo.App. 577; Longworth v. Sedevic, 165 Mo. 229; Lindsay v. Smith, 178 Mo. 189. (5) The testimony was not sufficient to overthrow the recorded plat and written dedication of Western avenue. They constituted a written conveyance of Western avenue to the public and located its east line 556 feet west of west line of Pine street as claimed by defendant. Whitehead v. Atchison, 136 Mo. 485.
Clarence Barnes, F. R. Jesse and E. C. Kennan for respondent.
This is an action of ejectment brought by the city of Laddonia against the defendant, for the possession of a certain strip of land, alleged to be a part of Western avenue, a public street in Smith's Addition to said city, which will later be more particularly described.
The judgment was for the defendant, and the plaintiff appealed the case to the St. Louis Court of Appeals, and upon motion the case was transferred to this court, because it involved the title to real estate within the meaning of the Constitution.
The following is a copy of description of said Smith's Addition, formal parts omitted:
Properly acknowledged and recorded.
And the following is a copy of the plat filed:
Exhibit 1
[SEE ILLUSTRATION IN ORIGINAL]
The land in suit is described as follows:
"Begin at a point forty-two feet and four inches west of the northwest corner of Lot Eight, Block Four, of Smith's Addition to the city of Laddonia, in Audrain county, Missouri, and run thence east forty-two feet and four inches to the northwest corner of said Lot Eight, then run south to the southwest corner of Lot Five of said Block Four of said Smith's Addition, then run west forty-one feet and three inches, thence run north to the point of beginning."
It is practically conceded that one J. P. Smith owned the land in controversy, together with other adjoining lands, and that on the 16th day of June, 1884, he laid out and platted Smith's Addition to the city of Laddonia and dedicated the streets and alleys described therein to the city, one of which, as previously stated, was Western avenue; and the defendant purchased all of Block Four in said addition from Verdia Bowman, as stated in the deed, "according to the recorded plat thereof."
The land in suit lies immediately west of and adjoining defendant's said Block Four, and he claims it as a part of his block, and the city claims it as a part of said Western avenue.
Upon this state of facts this case must be disposed of.
I. I have set forth the description of Smith's Addition to the city of Laddonia, and the plat accompanying it in haec verba, as appears from the record filed in this court.
By drawing a plat of section 35, township 52, range 7, of Audrain county, Missouri (which I have here done, viz.:)
[SEE ILLUSTRATION IN ORIGINAL]
and then attempting to locate the plat of the addition thereon, it will be discovered at a glance that it is an impossibility, for the reason that no definite starting point is given in the description of the addition, nor does the plat accompanying it lend any assistance thereto.
The description is: "Begin at the quarter section corner on the east side of section thirty-five, township fifty-two, range seven," etc.
To what quarter section corner does that language refer, the northeast corner of the northeast quarter, the southeast corner of the same quarter or the southeast corner of the southeast quarter of said section? No one, be he man, surveyor or the judge of a court, can answer that question, because it may refer to any one of the three corners mentioned.
With that omission in the description of the addition we have nothing before us except the plat proper to indicate the land in controversy; and that plat definitely locates the avenue in question, as well as the property of the defendant's Block Four, and according to that plat, clearly the strip of land in question belongs to the city, for the reason that section 6573, Revised Statutes 1879, now section 10294, Revised Statutes 1909, the statute under which the addition was laid out and platted and the streets and alleys were dedicated to public use, required all such additions and plats to be laid out and platted, showing the lots, blocks, streets and alleys, etc., and to be acknowledged and recorded as deeds conveying real estate are required to be acknowledged and recorded, and that when such additions are so laid out, platted, acknowledged and recorded the title to the streets and alleys described therein shall by those acts become the property of the city in fee, to be held by it in trust for the public.
This statute has been before this court for consideration so frequently that it would be hard for me to add anything new to the observations of the learned judges who wrote the opinions therein; and for that reason it will suffice to quote briefly from one or two of those cases and cite a few more.
In the case of Brown v. City of Carthage, 128 Mo. 10, l. c. 17, 30 S.W. 312, the court used this language:
And in the case of Railroad v. Baker, 183 Mo. 312, l. c. 322, the court said:
To continue reading
Request your trial