Goode v. City of St. Louis

• Decision Date: 22 December 1892
• Citation: 20 S.W. 1048,113 Mo. 257
• Parties: GOODE et al. v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

20 S.W. 1048

113 Mo. 257

GOODE et al. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1892.

DEDICATION AS "COMMON" — MISUSER — REVERSION — ESTOPPEL.

1. In platting land, the proprietors designated a strip which was "to be and remain a common forever." In an action against the city to recover the strip because of misuser, the evidence showed that the only permanent structure thereon was a transfer railway track authorized by defendant, that the ground was used by the public for the exchange of merchandise, and that all obstructions thereon could be removed within 10 days. Held, that defendant has not appropriated the land to purposes other than those implied by the term "common."

2. Misuser of land dedicated as a common will not operate as a reversion, where its use as a common is not thereby made impossible.

3. Where the donors of land abutting on a river, as a common, stand by for nearly 40 years, and without objection allow the city to expend nearly $1,000,000 in constructing wharves, etc., they are estopped, in equity, to claim a reversion because of a misuser.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Petition by Fannie W. Goode and others against the city of St. Louis and others to recover land. The petition was dismissed, and plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

In 1816, Chambers, Christy, and Wright were the owners of a tract of land lying outside and north of the then existing limits of the city of St. Louis. They platted the tract, laying it off in lots and blocks, streets, etc. A portion of the tract thus owned — a strip of ground varying in width from 70 to 100 feet, and about 1,300 feet long, running north and south, and lying between Front street (now Main street) and the river — was dedicated to the public use, as shown by the subjoined plat.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The words of dedication relating to this strip, as indorsed on the plat, are: "The land marked `A,' and bounded on the east by high-water mark, by lot number thirteen on the north, Front street on the west, and by lot number twelve on the south, is to be and remain a common forever." This strip, thus designated by the letter "A," embraced all the ground which lies east of Front street and west of the high-water mark of the Mississippi river, and is now called "Exchange Square." Among other words indorsed on the plat were these: "The proprietors reserve to themselves and their legal representatives the exclusive right of keeping all ferries to and from the town." At the time this plat was made, there was no town covering the ground thus platted; but one was contemplated by the dedicators, to be known by the corporate name of "North St. Louis." But no such town then existed, or afterwards became incorporated. In 1841 the limits of the defendant city were extended so as to embrace all the property included in the plat. At the time of the dedication the property marked "A" was the only landing place in the northern part of what is now the city of St. Louis. All boats, ferries, scows, and rafts landed there, and there was no point on the Mississippi river, inside of the present northern city limits, other than this, for such landings. The ferries plying between the Missouri and Illinois shores landed at this point, and emigrants, movers, gardeners, and travelers coming from Illinois camped there. There was a great number of sawmills in that vicinity, and logs were taken from the river at that point, and hauled out on the common. Boats loaded with sand to be used for building purposes also landed there. All these methods of so using the common, during the long years of habitual use of the same, were continued from the time the city first obtained control, with the knowledge and consent of the original proprietors, and down to the time of their death. Since that time the property has been put to similar uses. Some 48 years before this cause was heard, the main channel of the Mississippi river washed the front line of the dedicated strip in its original shape, and boats ran along there. This strip was low and wet, and subject to overflow. Every June the spring freshets would come and cover the strip with two or three feet of water. About this period, a boat sank in the channel just above the public landing mentioned, and caused a sand bar to form there, and the river having, in consequence, changed its channel to a point far eastward of the original front line of the strip, and the city desiring to extend is wharf system in front of the property, negotiations were opened between the city and heirs of Chambers, Christy, and Wright which resulted in the deed of 1853 being made between such heirs and the city, whereby there were conveyed to the city, absolutely, all the accretions to the tract of land between the wharf and Jefferson street, east of the old high-water mark, as shown on the plat of 1816, for the purposes of a wharf, and also all of the balance of the land originally dedicated, and all the accretions thereto, for the use to which it was originally dedicated, and in connection with the interest of the wharf. The proviso in that deed was as follows: "Provided, however, that said city shall not use said last-named piece of land [Exchange square] hereby conveyed for any other than such purposes as Exchange square was originally dedicated by the proprietors aforesaid," etc. This deed was put to record in January, 1854, and among its conditions was that the city should establish and build the wharf then agreed upon from Cherry street to the northern city limits, and that one half of the whole wharfage annually collected by the city after the second Monday in April, 1853, should be expended and applied on the wharf, etc. Complying with this condition, the city expended in front of Exchange square, between the years 1860 and 1889, the sum of $77,109.99 in the construction of the wharf and levee, and the further sum of $17,131.02 in grading, filling, and improving that square; making in all a total of $94,241.01 expended in improving the property for public use.

Owing to the sinking of the boat as already stated, resulting in the formation of a sand bar, a pressing necessity arose for the construction of two dikes, — one at North Market and the other at Montgomery street. The city began to build these dikes in 1860, about the time it began to improve Exchange square and to build the wharf, and, in thus building the dikes and improving the wharf in this vicinity, expended about $750,000 in addition to the sums already stated. After the dikes were built, all the space between them was gradually filled up to grading, the last filling being done in the summer of 1888; and without such dikes, filling, etc., Exchange square would have been a worthless piece of property. But in consequence of the improvements aforesaid, and the accretions which have been thereby protected, the present common, or Exchange square, is now nearly 1,000 feet wide, and about 1,300 feet long, constituting an ample and commodious wharf and landing place for boats in front of the property. At one time there were some 100 or 200 trees planted out on the square, some 10 years before the hearing, which occurred in January, 1889; but in process of time those trees, and the fence which inclosed them, disappeared. No street has ever been established across the square, but, as the accretions caused the river to recede, it becoming necessary, in order to reach the river bank over a low, muddy place, North Market street was prolonged east of First street by filling up a passageway across the lowlands so as to reach the ferry. This filling-up process of a passageway was done from time to time as the river receded. The ordinance authorizing the leasing to Timany of a portion of ground for 15 years at a yearly rental of $600 only covers a portion of the wharf, for which the city had received from the ancestors of plaintiffs an absolute conveyance under the terms of the deed of 1853, and which portion the city, by ordinance, had been given the power to rent. On Exchange square there are no permanent structures, except some railroad tracks of the Wabash & Western Railway Company and of the St. Louis Transfer Railway Company cross small portions of the original common, extending thence diagonally along the wharf. The evidence also shows that since 1853, by permission of the city, portions of the grounds conveyed by the heirs of Chambers, Christy, and Wright have been used as lumber yards and for other similar purposes. This has been done under temporary arrangements, made and extended from time to time, in consequence of which very little of the made ground remains but what is devoted to some public or commercial use. It is in evidence, however, that the original common continues to be open and uninclosed, and that the whole tract, inclusive of accretions, is still used for a variety of public purposes, and among them that of a public landing place along the river. One witness, residing very near to the litigated property, testified that a whole block — nearly one eighth of the whole square — was bare, naked common, recently filled up, — had been left open to pass merchandise from the railroad track. Plaintiffs' witness Cozzens further testifies that if the lumber is taken off of the square there is nothing to prevent its being used by the public, and that the lumber could be taken away with very little trouble. Witness further testifies that the square could be converted into a common in 10 days, and that when the lumber is removed the property would be level and smooth. The same witness testifies that, if the lumber was taken off, there is nothing to prevent making the square a park, except improving it.

On the 17th of May, 1879, the present litigation was begun. All the heirs of Chambers, Christy, and...