Kaime v. Harty

• Citation: 73 Mo. 316
• Parties: KAIME v. HARTY et al., Plaintiffs in Error.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

73 Mo. 316

KAIME

v.HARTY et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1880.

Error to St. Louis Court of Appeals.

REVERSED.

Leverett Bell for plaintiffs in error.

Fisher & Rowell for defendant in error.

HENRY, J.

This suit was to enjoin the city of St. Louis and Harty from macadamizing, curbing and laying down sidewalks on a street called “Hogan avenue,” which work Harty was proceeding with, under a contract with the city. A perpetual injunction was granted by the circuit court. The court of appeals affirmed the judgment; and defendants have brought the cause here by writ of error.

The plaintiff claims to be the owner of a parcel of land, the northern thirty feet of which forms the south half of Hogan avenue, and the material question is, whether there has been a dedication to the city of the strip in question and of one of equal length and width north adjoining it. The city relied upon a plat of “Vandeventer Place,” executed and filed in 1870, by Wm. Vandeventer for himself, and also in connection with three other parties, as executors of the last will of Peter Vandeventer, upon which the north half of the alleged Hogan avenue is designated as follows: “Proposed Hogan avenue.”

No authority of the executors to make such dedication was shown, and in the absence of a provision of the will, and an order or decree of the court having jurisdiction to make it, authorizing such a disposition of the testator's land, the executors had no such power over the estate.

But while the claim of the city under this plat cannot be maintained, the evidence shows that in 1857 or 1858 Peter Vandeventer, who owned the land on the north, and John Hogan, who claimed to own the land on the south of the north line of survey 1660, agreed to open the street in question, and each, as Hogan and others testified, moved his fence back thirty feet from the line between them, and from that time forward the north, or Vandeventer half of the street, was open and used by the public as a highway. There is a conflict of evidence as to whether the south or Hogan half was thrown out and used as a street by the public. There was, however, a dedication of the north half, and the facts with regard to the dedication of the other half, aside from evidence of its use as a highway by the public, are as follows: Hogan claimed the land under a deed from Joseph and Marie Garnier, the latter of whom, it is conceded, owned the land prior to the execution of the deed to Hogan, in which there was a reservation of the front or eastern part of a lot of two by forty arpents. It was a question whether this reservation did not embrace the land claimed by Hogan and conveyed by him to plaintiff in 1865, and, for this reason we conjecture, Marie Garnier joined with Hogan and wife in the execution of the...