American Steel & Wire Co. of N. J. v. City of St. Louis

• Citation: 190 S.W.2d 919,354 Mo. 692
• Decision Date: 05 November 1945
• Docket Number: 39552
• Parties: American Steel & Wire Company of New Jersey, a New Jersey Corporation, Appellant, v. The City of St. Louis, a Municipal Corporation; Board of Education of the City of St. Louis, a Corporation, et al
• Court: United States State Supreme Court of Missouri

190 S.W.2d 919

354 Mo. 692

American Steel & Wire Company of New Jersey, a New Jersey Corporation, Appellant, v. The City of St. Louis, a Municipal Corporation; Board of Education of the City of St. Louis, a Corporation, et al

No. 39552

Supreme Court of Missouri

November 5, 1945

Rehearing Denied December 3, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Reversed and remanded (with directions).

Fordyce White, Mayne, Williams & Hartman, and Joseph R. Long for appellant; Knapp, Cushing, Hershberger & Stevenson of counsel.

(1) The towpath constituted a movable or fluctuating easement and not a fixed street or highway. St. Louis v. St. Louis Blast Furnace Co., 235 Mo. 1. (2) The towpath, constituting a fluctuating easement, and not a fixed street, did not limit title acquired by original grantee to western line of towpath as a boundary. St. Louis v. St. Louis Blast Furnace Co., 235 Mo. 1; St. Louis Public Schools v. Risley, 40 Mo. 356, affirmed, 77 U.S. 91, 19 L.Ed. 850; St. Louis v. St. Louis, I.M. & S. Ry. Co., 248 Mo. 10; Smith v. St. Louis, 21 Mo. 36; Smith v. St. Louis Public Schools, 30 Mo. 290; LeBeau v. Gaven, 37 Mo. 557; St. Louis Public Schools v. Schoenthaler's Heirs, 40 Mo. 372; Myers v. St. Louis, 82 Mo. 367; Campbell v. Laclede Gas Co., 84 Mo. 353; St. Louis v. Lemp, 93 Mo. 477; Ellinger v. Mo. Pac. Ry. Co., 112 Mo. 525; St. Louis v. Mo. Pac. Ry. Co., 114 Mo. 13; Tatum v. St. Louis, 125 Mo. 647; Sweringen v. St. Louis, 151 Mo. 348; St. Louis v. Whitman, 235 Mo. 39. (3) Conveyance of land bordering towpath wholly made from the grantor's land, and lying between land conveyed and navigable river, there being no land on opposite side of towpath, conveyed the fee to the whole of the towpath. Johnson v. Grenell, 188 N.Y. 407, 81 N.E. 161, 13 L.R.A. (N.S.) 551, affirmed, 112 A.D. 620, 98 N.Y.S. 629; Wait v. May, 48 Minn. 453, 51 N.W. 471; Snoddy v. Boben, 122 Mo. 479; Grant v. Moon, 128 Mo. 43; 11 C.J.S., p. 586, sec. 35 (2); Morgan v. Livingston, 6 Martin, 19; Municipality No. 2 v. Orleans Cotton Press, 18 La. 122, 36 Am. Dec. 624; Hall v. Conn. Mut. Life Ins. Co., 76 Minn. 401, 79 N.W. 497; Lamprey v. Amer. Hoist & Derrick Co., 197 Miss. 112, 266 N.W. 434; Gifford v. Morton, 54 Wash. 595, 103 P. 988; Taylor v. Armstrong, 24 Ark. 102; 9 C.J., p. 203, sec. 97; State of Texas v. Arnim, 173 S.W.2d 503; Allen v. City and County of San Francisco, 7 Cal. (2d) 642, 61 P.2d 1175; Shore v. Friedman, 142 Pa.Super. 373, 16 A.2d 727; Croucher v. Wooster, 271 Mich. 337, 260 N.W. 739; Mariner v. Schulte, 13 Wis. 692; Rowe v. James, 71 Wash, 267, 128 P. 539; Brackney v. Boyd, 71 Ind.App. 592, 123 N.E. 695; Haberman v. Baker, 128 N.Y. 253, 28 N.E. 370, 13 L.R.A. 611; Re Application of Robbins, 34 Minn. 99, 24 N.W. 356, 57 Am. Rep. 40.

Carter, Bull & Garstang, Emmet T. Carter and Richard S. Bull for respondents.

(1) A conveyance of land, described with definite dimensions and as being bounded by a strip referred to as "a Tow or Water Street," which separated such land from the Mississippi River (the river being unmentioned in the deed), does not carry fee title to such strip or to accretions which attach thereto. Smith v. St. Louis, 21 Mo. 36; Smith v. St. Louis Public Schools, 30 Mo. 290; St. Louis Public Schools v. Risley, 40 Mo. 356, affirmed 77 U.S. 91, 19 L.Ed. 850; St. Louis v. Lemp, 93 Mo. 477, 6 S.W. 344; Ellinger v. Mo. Pac. Ry. Co., 112 Mo. 525, 20 S.W. 800; St. Louis v. Mo. Pac. Ry. Co., 114 Mo. 13, 21 S.W. 202; Sweringen v. St. Louis, 151 Mo. 348, 52 S.W. 346; St. Louis v. St. Louis Blast Furnace Co., 235 Mo. 1, 138 S.W. 641; St. Louis v. St. Louis, I.M. & S. Ry Co., 248 Mo. 10, 154 S.W. 55; Ancona Realty Co. v. Frazier, 328 Mo. 750, 41 S.W.2d 820. (2) Such strip was a part of the land reserved for the support of schools in the Town of Carondelet. Fee title thereto and to its accretions, never having been conveyed since its original reservation, remained vested in the school authorities. Authorities cited under Point (1); Act of Congress, approved June 13, 1812, Sec. 2; Act of Congress, approved January 27, 1831; Sec. 1011, R.S. 1939; Columbia v. Bright, 179 Mo. 441. (3) Principles of law applicable to the title to marginal streets, dedicated by the owner prior to the conveyance of abutting property do not control riparian rights of lands so conveyed by reference to specific dimensions and boundaries as to separate them from the water. Authorities cited under Point (1). (4) Surrounding facts and circumstances, if inconsistent with the definite and express terms of a conveyance, will not be used to destroy the expressed intent of the parties to the conveyance. Authorities cited under Point (1); 18 C.J. 260-262, sec. 217.

OPINION

Gantt, J.

Defendant admits that plaintiff correctly states the facts as follows:

Parties and Property Involved.

This is an appeal taken by the plaintiff from a decree of the Circuit Court of the City of St. Louis, entered in a suit to quiet title to certain real estate in the City of St. Louis. The decree narrowed the issues to be presented on appeal, eliminating a number of issues presented by the pleadings in the trial court. As originally filed, the First Amended Petition sought to quiet title to approximately fourteen acres of land lying within the territorial limits of the former town (later city) of Carondelet, and now within the City of St. Louis, and bordering on the Mississippi River. In the First Amended Petition, the land involved was particularly described, and the several parcels composing the entire contiguous tract were designated as Parcel 1, Parcel 2, Parcel 3 (A) and Parcel 3 (B). Actually the title of the plaintiff to Parcel 1 and Parcel 2 was never disputed by any of the defendants who appeared herein, and such parcels were included for the purpose of curing certain minor defects appearing in the early chain of title, against possible claims of certain unknown defendants served by publication. Also the title of the plaintiff to Parcel 3 (A) was not seriously contested by the defendants who appeared herein, for reasons which will later appear, and the decree entered by the Circuit Court quieted the title of plaintiff to such Parcel 3 (A), and no Assignments of Error are being taken respecting that portion of the decree. Thus, the only portion of the lands described in the First Amended Petition, the title to which remains in dispute, is Parcel 3 (B).

The only defendants named in the petition who entered an appearance in the suit were (1) The City of St. Louis; (2) The City of St. Louis as Trustee for Board of Education of the City of St. Louis; (3) Board of Education of The City of St. Louis, and (4) Guy A. Thompson as Trustee in Bankruptcy of Missouri Pacific Railroad Company. All other defendants, being unknown persons, were served by publication, and default was entered against them to cure certain minor defects in the early title. The defendant Guy A. Thompson, as Trustee, was brought in because the Missouri Pacific Railroad Company had certain rights-of-way for railroad purposes across the property, but after the First Amended Petition was filed stating that the title claimed by plaintiff was subject to existing rights-of-way, this defendant filed a disclaimer, disclaiming any other interest in the property, and thereafter took no part in the proceedings. The decree entered by the Circuit Court adjudged, in effect, that the defendant The City of St. Louis, either in its individual capacity, or as Trustee for Board of Education of the City of St. Louis, had no interest in the property, and the City has taken no appeal from such decree. Consequently, for practical purposes, the City has been eliminated from the case, and the issues on appeal resolve themselves into a determination of whether the plaintiff or the Board of Education of the City of St. Louis is the owner of Parcel 3 (B).

A map showing all of the property under discussion is included in the Transcript of Record.

The case was tried on a stipulation of facts with supplement thereto, together with oral testimony offered by plaintiff.

Eiler's Survey.

The property in dispute, Parcel 3 (B), consists of (1) lands formerly occupied by "a Tow or Water Street," shown on Eiler's Survey of Carondelet, and (2) accretions added to such "Tow or Water Street" by action of the Mississippi River, all lying east of what became known as Block B of Eiler's Survey of the Town of Carondelet, now a part of the City of St. Louis. The plaintiff claims title thereto as the remote grantee of the original individual owner of such Block B.

Eiler's Survey of the Town of Carondelet was made in 1832. By this survey, the Town of Carondelet was divided into blocks approximately 300 feet square. The north and south streets were approximately thirty-five feet wide, and the east and west streets were thirty feet wide. Along the Mississippi River, and east of the entire front, or east, tier of blocks, there was left a strip of land approximately seventy feet wide, which was designated on the survey as "A Tow or Water St." The remarks on the plat concerning this "Tow or Water Street" are, "On the River Mississippi is left a Tow of about seventy feet (70') English measure." Appearing on the plat are two blocks numbered 18 and 19, which were complete blocks having the usual 300 foot dimensions on all four sides. The east halves of these blocks are described in the petition as Parcel 1 and in the Stipulation of Facts as parcels 1 (a) and 1 (b), respectively. Bounding these blocks are east and west streets, beginning with Q Street on the north, R Street between the two blocks, and S street on the south, which are now known as Quincy Street, Blow Street and Nagel Avenue, respectively.

Lying...