City of St. Louis v. Clegg

• Decision Date: 19 July 1921
• Docket Number: No. 21118.,21118.
• Citation: 233 S.W. 1
• Parties: CITY OF ST. LOUIS v. CLEGG
• Court: Missouri Supreme Court

233 S.W. 1

CITY OF ST. LOUIS v. CLEGG

No. 21118.

Supreme Court of Missouri, Division No. 2.

July 19, 1921.

Appeal from St. Louis City Court; Kent K. Koerner, Judge.

Proceedings by the City of St. Louis against Emma Clegg and others to appropriate certain property for street purposes. From a judgment of the circuit court authorizing the appropriation and awarding only nominal damages to the named defendant, that defendant appeals. Affirmed.

W. B. & Ford W. Thompson, of St. Louis, for appellant.

Chas. H. Daues, H. A. Hamilton, and G. Wm. Senn, all of St. Louis, for respondent.

WALKER, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis, appropriating certain property for street purposes.

A petition to establish, open, and widen Glades avenue, in the city of St. Louis was filed by the city in the circuit court. Among other defendants named was the appellant. Commissioners were appointed, who awarded appellant nominal damages for her property taken, and assessed her benefits at $210.60. She had owned the property here involved many years. Prior thereto it had belonged to her husband, now deceased, who, on the 3d day of September, 1886, had a survey made of it. This survey was filed in the office of the recorder of deeds of the city of St. Louis, on July 24, 1909. It designates the property as located "on Glades avenue." The filing of this survey was subsequent to the making and delivery of a deed by appellant to one Chas. P. Heil, on July 13, 1909, "for a lot on Forest avenue, extending along the south line of Glades avenue." On July 12, 1915, the grantee, Heil, made a contract in writing with appellant, with reference to Glades avenue, which, omitting superscription and the signatures of the parties, is as follows:

"This is to certify that I, Mrs. Emma Clegg, residing at Garner and Prather avenue, in the city of St. Louis, agree to sell to Mr. Chas. P. Heil, residing at Garner and Forest avenues, city of St. Louis, a strip of ground laying between his property on the southeast corner of Glades avenue and Forest avenue and for a depth of 200 feet eastwardly on said Glades avenue. Said part or parcel of property 5 feet more or less that may be left between his property and said contemplated 40 foot street, to be opened by the city of St. Louis as petitioned for by said Mr. Chas. P. Heil, Mrs. Emma Clegg and others, for a consideration of ($10.00) ten dollars per front foot on Forest avenue and a depth of 200 feet on Glades avenue."

Signed by both parties and witnessed.

A deed was also introduced in evidence, dated January 29, 1917, from the appellant to Walter W. Corey and wife, recorded May 28, 1917, which called for a lot of ground having a front of 100 feet "on the south line of Glades avenue, a private street 50 feet wide, by a depth southwardly of 174 feet and 7 5/8 inches to a private alley 15 feet wide, the same being east of the property of Heil." This deed was made and filed for record after the commencement of this suit and the filing of the commissioner's report.

There was also offered in evidence a plat of a sewer district which shows that the strip of land in controversy on the north line of the property of appellant had been assessed for a sewer. A plat was also introduced in evidence showing an assessment district between Forest and Prather avenues and an assessment for the paving of Forest avenue against appellant including one lot adjacent thereto the property of Charles P. Heil, and also assessing against her 100 feet further east to the end of the assessment district, and for the paving of the alley along the rear of said property.

It was admitted that the assessor of the city of St. Louis had assessed city and state taxes against appellant, including the property as described on the Cozen's survey and the property in controversy, during each year of her ownership down to the date of the judgment in this case, and that she had paid the taxes thereon. It was also shown that the assessor of special taxes had made out the assessment district for the sewer tax, and that he had assessed appellant's property, because there was no deed to Heil, nor was the Cozen's survey of record in 1908; that when he came to make the assessment for the paving of Forest avenue he followed the Cozen's survey in assessing the cost of the paving of same against the appellant; that he made the assessment for the paving of that avenue against appellant's property by following the description found in the deed made by her to Heil, but made no assessment against the city for any part of Glades avenue; that the assessment was made in such a way that the property north of Glades avenue, as well as the property belonging to appellant south of this avenue, absorbed the entire assessment of the area contained in the avenue. The plat accompanying this statement shows the location of Forest avenue on the west and Prather avenue on the east of Glades avenue, the property of appellant and of Heil lying south of same. The particular area involved in this appeal is the southern part of the street defined by ordinance, designated as Glades avenue, and extending from Prather to Forest avenue, a distance of 530 feet.

I. The complaint of the appellant is on account of the alleged inadequacy of the commissioner's awards, in that they should have been substantial and not nominal in amount. The issue as thus presented requires for its determination the status of Glades avenue, as a public or private highway. The appellant contends: That no act of hers can be construed as a dedication. That the recorded plat of this property, while it may have indicated a proposed survey, bore upon its face no evidence that it was the act of the owners, or that its recording had been authorized. That it possessed none of the requisites of a statutory dedication. Coberly v. Butler, 63 Mo. App. 556; Downer v. St. Paul, etc., R. R., 23 Minn. 271.. That a map or plat to constitute a dedication must be more than the drawing of lines along property designated as a street. College v. Cedar Rapids, 120 Iowa, 541, 95 N. W. 267. That the passive permission of owners that the public may use lands, although continued for a term of years, does show an intent to dedicate to public use. Postal v. Martin, 4 Neb. (Unof.) 534, 95 N. W. 8; Hartley v. Vermillion (Cal.) 70 sac. 273. Thus the leaving of a lane through a farm to accommodate the owner and his neighbors is a revocable license, but not a dedication. Field v. Mark, 125 Mo. 502, 28 S. W. 1004; Balmat v. City of Argenta, 123 Ark. 175, 184 S. W. 445. Furthermore, that there was no acceptance on the part of the city, and that the strip of land at the time of the report of the commissioners was private property, and, if so, that more than a nominal allowance should have been made for its taking. Specific reasons, based upon the testimony, are urged in support of these contentions, which will receive consideration later.

II. In the determination of the question as to whether there was a dedication of this property to a public use, the deeds from appellant to Heil and the Corey's merit more attention in the determination of the matter at issue than has been given to them. Conceding the correctness of the rules above stated, as to the requisites of a dedication under appropriate facts, do the facts in evidence render these rules applicable in the instant case? In the deed to Heil, the property conveyed was described as follows:

"A lot in block forty-six hundred twenty-four, A, of the city of St. Louis, beginning at a point in the east line of Forest avenue at its intersection with the south line of Glades avenue, thence southwardly along said east line of Forest avenue one hundred twenty-four feet seven and five-eighths inches, more or less, to the north line of property now or formerly owned by C. Moore, thence eastwardly along the north line of lot now or formerly owned by C. Moore one hundred twenty-five feet, thence southwardly along the east line of lot now or formerly owned by C. Moore, and parallel with said east line of Forest avenue fifty feet, more or less, to a private alley fifteen feet wide, thence eastwardly on north line of said private alley seventy-five feet, thence northwardly and parallel with said east line of Forest avenue one hundred seventy-four feet seven and five-eighth inches, more or less, to the south line of Glades avenue, thence westwardly along said south line of Glades avenue two hundred feet to the point of beginning."

In the deed to the Corey's made and executed after this suit was brought, we find the following description of the property conveyed:

"A lot in block No. four thousand six hundred twenty-four A (4624A), having a front of one hundred feet (100') on the south line of Glades avenue, a private street fifty feet (50') wide, by a depth southwardly of one hundred seventy-four feet (174') seven and five-eighth inches (7 5/8") to a private alley fifteen feet (15') wide; bounded west by a line two hundred feet (200') east of and parallel to the east line of Forest avenue. Also all right, title and interest in and to that part of the private street known as Glades avenue which immediately adjoins the above-described property on the north."

A dedication to the public in so many words is rendered difficult on account of the absence of a grantee. However, this has been obviated in some instances by construction. For example, a deed to "the present and future owners of town lots" is construed to be a dedication to the public (Mayo v. Wood, 50 Cal. 171), as is also a covenant in a grant which gave the citizens of a town "the free privilege of drinking water" from a spring on a tract of land adjacent to the town and owned by the grantors (Corbin v. Dale, 57 Mo. 297); likewise a deed "to the inhabitants" of a town has been held to...