Armstrong v. City of St. Louis

• Decision Date: 30 April 1879
• Citation: 69 Mo. 309
• Parties: ARMSTRONG v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

69 Mo. 309

ARMSTRONG

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

Leverett Bell for appellant.

Addison Reese and Frank Hicks for respondent.

IIENRY, J.

The plaintiff sued the defendant, city of St. Louis, in ejectment, for two parcels of land lying in said city, laying his damages at $15,000 and stating the monthly rents and profits to be $83.93.

The answer was a denial, and a plea of the statute of limitations, and also, as a defense, that plaintiff had dedicated the premises to the city, to be used as a street, and that the city had proceeded, after said dedication, to improve said parcels of land to be used as a street, and that, for ten years next before the commencement of this suit, said premises had, with plaintiff's consent, been used as a street.

Plaintiff, as to his title and the alleged dedication, pleaded, in his replication, that those questions between plaintiff and defendant were res adjudicata, having been settled and determined in a cause between plaintiff and defendant, commenced in the circuit court of St. Louis county, December 10th, 1868, in which plaintiff alleged title in himself to the said premises, and defendant, for a defense, relied upon a dedication of the same by the plaintiff to public use. In that suit, the record of which was introduced as evidence by plaintiff, he obtained judgment.

1. RES ADJUDICATA: parol evidence.

It clearly appeared that the same premises were in dispute in both cases, and the dedication relied on in this was the identical dedication relied upon by the city in that case. Where the record shows what questions were necessarily involved in a suit which has been determined, parol evidence is inadmissible to show that those questions were not, and others were, determined. Parol evidence has been held admissible to prove what was determined where the record itself failed to do so. The court properly admitted the record of the former suit, and excluded the parol testimony offered to show what matters were adjudicated in that suit. If the parol evidence would have shown that other questions were also considered and determined in that action, it would have been immaterial in this. If it would have shown that the question of the dedication of the premises by Armstrong to the city was not considered and determined in that suit, it would have contradicted that record; and, in either view, the parol evidence was inadmissible.

2. EJECTMENT TO RECOVER A STREET WAY.

The principal question in this case is, whether an action of ejectment will lie against a city, by the owner of land wrongfully taken by the city and converted into and used as a public street. There are authorities which hold that the action cannot be maintained, but the reasons given for it are unsatisfactory.

In Cowenhoven v. City of Brooklyn, 38 Barb. 9, the court say: “The claim of the corporation, if any, was to a public right of way over the land, not incompatible with the title of the plaintiff, for it was a mere easement, nor with his possession, for if he owned the fee of the land over which the street passes, he would, in contemplation of law, be in possession of the street, and might maintain trespass against another for any use of the land except for the purpose of traveling.” The owner of the land in such case is as entirely deprived of the use of the land as if the city had taken it and claimed to be the owner in fee simple. To say that he is in “contemplation of law in possession of the street,” is no answer to the real fact that he is entirely deprived of the possession. He has the same right to travel over the street as any other person, not, however, as owner of the property, but as one of the public, any one of whom can exercise as much dominion over the property as he. He is entirely deprived of his property. He cannot sue the public, or any one traveling on the street, and recover his property; and if he cannot sue the corporation, which has taken and holds possession of the premises as a street, and recover the specific property, then private property may be taken and held for public use, without a compliance with the law providing a mode of condemnation. He may sue and recover its value from the city, and has no other remedy, it is contended; but this would be to hold his property at the mercy of the city, which can take it from him, and compel him to accept, in lieu of the property, the amount of money a jury may estimate it to be worth, or rather, a judgment for that amount, which may possibly never be satisfied, and thus force him to exchange his land, which he may wish to hold, for money, or other property, which he does not want. He has a right to the specific property, and no corporation, not even the State, can deprive him of it but in the manner provided by law.

The cases cited from Massachusetts and New Hampshire are not applicable. Smith v. Wiggin, 48 N. H. 105, was a writ of entry, in which demandant sought to recover “a right of way, or a passage from Chappel street, at any and all times with teams,” &c., and it was held that, “ejectment would not lie against one claiming an easement in a parcel of land, to try his right to enjoy the same.” If Armstrong were refused the privilege of traveling over the street, and should sue in ejectment to try his right to do so, the case would be in point. What was decided in that case is undoubted law. Armstrong, however, is not suing to recover, or to try his right to, an easement in the premises in controversy, but to recover the premises, and oust the city, which, whether it claims in the land an easement only, or not, has entirely deprived him of the possession thereof. In the case of Child v. Chappell, 9 N. Y. 248, the defendant was not in the exclusive possession of, nor did he claim any such right, to the wharf. His use of the wharf and basin was only temporary and occasional, and not exclusive; and the court therefore held that ejectment could not be maintained.

The writ of entry, as a remedy for the recovery of real property, is retained in New Hampshire and Massachusetts, and will not lie unless both demandant and tenant claim a freehold in the premises. In Mills v. Peirce, 2 N. H. 9, which was a writ of entry for “a certain store situated in Dierfield” Woodbury, J., said: “If, in fact, at the commencement of the action, the tenant was not in possession claiming any interest he should have pleaded non tenure, or disclaimed; or, if in possession, claiming less than a freehold, he should have pleaded non tenure special.” In Smith v. Wiggin, 48 N. H. 105, Nesmith, J., said: “The demandant in a writ of entry must demand a freehold. It follows that the tenant against whom the action is brought must be seized of a freehold.” In Higbee v. Rice, 5 Mass. 344, Parsons, C. J., said: “And it will not be denied, that in ejectione firmae, which is an action of trespass against the defendant for ejecting the plaintiff from his farm, under the general issue of not guilty, if the parties were tenants in common, the plaintiff, to recover, must prove an ouster by the defendant. We speak not of the fictitious, but of the actual ejectione firmae, in which neither the lease, entry nor ouster is confessed. And the reason is evident, because the ouster is not only charged in the writ, but is by the plea put in issue. But a writ of entry will lie...