Price v. Town of Breckenridge

• Decision Date: 06 June 1887
• Citation: 5 S.W. 20,92 Mo. 378
• Parties: PRICE and others v. INHABITANTS OF THE TOWN OF BRECKENRIDGE.
• Court: Missouri Supreme Court

5 S.W. 20

92 Mo. 378

PRICE and others v. INHABITANTS OF THE TOWN OF BRECKENRIDGE.

Supreme Court of Missouri.

June 6, 1887.

1. DEDICATION — ACCEPTANCE — ADVERSE POSSESSION.

When there is an offer or attempt to dedicate ground for a public use, and such offer is followed by adverse use by the public under a claim of right, no formal acceptance by corporate officials is required. Acceptance is in time if made before the offer to dedicate is withdrawn, but cannot be proven by what citizens understood.¹

2. ESTOPPEL — DEDICATION.

If one, claiming to be a trustee and part owner of land which a town says has been dedicated as a "public square," allows it to be fenced and treated as such, and at a public sale of adjoining lands permits the auctioneer to state that said land is so dedicated, without objecting, and states it himself in the presence of his alleged cestuis qui trust, and furnishes plans upon which it is so designated, then they are all estopped from denying such dedication.¹

Appeal from circuit court, Caldwell county.

Broaddus & Wait and Chapman & J. M. Davis, for appellants. Johnson & Dilley, for respondent.

NORTON, C. J.

This suit is by ejectment to recover block 15, in the town of Breckenridge. The answer, besides being a general denial, sets up the statute of limitations; a dedication by the original owners of said block as a public square, by which the title was vested in Caldwell county for defendant; and also sets up that plaintiffs were estopped from denying that said block had been dedicated to the public as a public square by reason of representations made by the owners of the town-site that said block was a public square, whereby purchasers of lots were induced to pay more for them than they otherwise would have done. Defendant obtained judgment, from which plaintiffs have appealed; and, as ground of error, allege the action of the court in receiving improper evidence, and giving improper and refusing proper instructions. The land in controversy is block 15, in the town of Breckenridge, and it is agreed that Henry Gist was formerly the owner of the tract of which said block is a part; and it appears from the record that in 1856 a town company was formed, consisting of said Gist, Terrel, Wardlow, and plaintiff Price; that said Gist conveyed by deed said tract of land to said Price, vesting in him the legal title as trustee for the benefit of said Price, Gist, Terrel, and Wardlow; and it is conceded that plaintiffs in this suit are entitled to recover five-sixths of the block in controversy, unless defeated by the defenses set up in the answer, the first of which, viz., that the block of ground in controversy had been dedicated by statutory dedication as a public square, seems to have been abandoned on the trial, and the cause was tried by the court on the second and third defenses set up, as will appear by the instructions given, which will be hereinafter adverted to.

It appears from the record that a public sale of lots was had in the town of Breckenridge in July, 1857, and defendant offered testimony tending to show that at that sale the auctioneer was requested by Price, who was managing the sale, to take the people to the "public square" to sell lots, and expatiate on the advantages of that as a square; that he accordingly went down to block 15, and it was then said to the people that in case a new county was created, that Breckenridge would be the county-seat; that no restriction was put on it as a public square; that Price, Terrel, and Gist were present; that the last sales were made at that block. One witness testified that a lot was sold fronting block 15 for a hotel, and another that the auctioneer was crying a lot in a block east of block 15 when he was called away by Price. This evidence was objected to on the ground that, inasmuch as the deed of trust to Price provided that "he was fully empowered to execute, as the law requires, a deed to the streets, alleys, and public grounds in the town aforesaid," that he was restricted to that mode, and could not bind himself, or the other members of the town company, by his representations. This objection, we think, was properly overruled, because Price not only had one-fourth interest in the property, and could undoubtedly bind himself to the extent of that interest, and because if, as the trustee and agent of Gist and Terrel, he made these representations, as the evidence tended to show, in their presence, to which they made no dissent, they were sufficient, not only to bind him, but also them. It was also shown that the original plat of the town which had been filed in the recorder's office of Caldwell county had been destroyed by fire, and it was testified to by witness Bottom that, his father having purchased some lots, he called upon Price in 1860 for a plat of the town, who handed him a plat which had the words "Public Square" written, in Price's handwriting, across said block 15, and that in 1867 Price sent him another plat on which the words "Public Square" were also written, in Price's handwriting, across said block. To the admission of these plats in evidence plaintiffs objected, on the ground that Price, being a trustee, could not prejudice the interests of those connected with him, and for whom he was acting. This objection was properly overruled, if for no other reason than that Price was an owner of one-fourth of the property.

Defendant also offered evidence tending to show that the block in question was fenced in 1866, or spring of 1867, by a public subscription made up by subscribers both in the town and surrounding country; that trees were planted in it; and that the fence was kept up till the institution of this suit in October, 1877. Plaintiffs objected to this evidence on the ground that the dedication could only be accepted by the corporate authorities of the town of Breckenridge, and could not be accepted by the public at large. There was no evidence as to the incorporation of the town, except inferentially from the statement of one witness, who said that he was a trustee of the town; but whether before or after the block was fenced does not appear. The objection, on the authority of the following cases, was properly overruled; it being held that when there is an offer or attempt to dedicate ground for a public use, and such offer is followed by adverse use by the public under a claim of right, that no formal acceptance...