Baker v. McDaniel

• Decision Date: 09 December 1903
• Parties: BAKER, Appellant, v. McDANIEL et al
• Court: Missouri Supreme Court

77 S.W. 531

178 Mo. 447

BAKER, Appellant, v. McDANIEL et al

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

James Baker, Charles J. Wright and William A. Gardner for appellant.

(1) The statute of limitations will not run against the public. Dillon, 675; State v. Warren, 51 Mo.App. 174; Williams v. St. Louis, 120 Mo. 403; R. S. 1899, sec 4270; State v. Walters, 69 Mo. 463; Cummings v St. Louis, 90 Mo. 259; Brown v. Carthage, 128 Mo. 17. (2) Lands dedicated to public use at common law remain for all other purposes the property of the dedicator. Ragan v. McCoy, 29 Mo. 366; Pierce v Chamberlain, 82 Mo. 618; Cummings v. St. Louis, 90 Mo. 259; Campbell v. City of Kansas, 102 Mo. 326; Vossen v. Dantel, 116 Mo. 379; Dillon, Mun. Corp., 633, 634; Tiedeman, 611. (3) The right of access to abutting owners is private property and can be acquired only by deed. Fuhr v. Dean, 26 Mo. 116; Vaughan v. Rupple, 69 Mo.App. 585. (4) The owner of the land retains the exclusive right to the use of it for any other purpose of use or profit not inconsistent with the public use, and may maintain actions for any encroachments. Baker v. St. Louis, 75 Mo. 671; Vossen v. Dantel, 116 Mo. 375; Dillon, 633; Bishop's Non-Contract Law, sec. 990. (5) Dedication is a question of fact and each case must largely rest on its own foundation. Gamble v. St. Louis, 12 Mo. 617; Becker v. St. Charles, 37 Mo. 13; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; Kaime v. Harty, 73 Mo. 316; Zimmerman v. Snowden, 88 Mo. 218; Price v. Town of Breckinridge, 92 Mo. 378; Board of Regents v. Painter, 102 Mo. 464; Vossen v. Dantel, supra; Bauman v. Boeckeler, 119 Mo. 189; Milling Co. v. Riley, 133 Mo. 574.

Tatlow & Mitchell for respondents.

(1) It is elementary that the question whether land has been dedicated to public use is primarily one of intent, and to establish such a dedication and a divestiture of the citizen's landed property in favor of the public "the proof ought to be so cogent, persuasive and full as to leave no reasonable doubt of the existence of the owner's intent and consent." Landis v. Hamilton, 77 Mo. 554; Bauman v. Boeckeler, 119 Mo. 199; Erwin v. Dixon, 9 How. 30; Brink v. Colyer, 56 Mo. 154. (2) The facts in this case bring it within the rule well established in this State, that the west line of the defendants' property has been definitely fixed and agreed to between the defendants and their ancestors, and those under whom they claim, and the owners of the adjoining property under whom the plaintiff claims, and that this agreement need not be established by positive and direct evidence, but the facts in the case at bar are amply sufficient to establish the agreement. Brummell v. Harris, 148 Mo. 440; Blair v. Smith, 16 Mo. 233; Jacobs v. Mosely, 91 Mo. 457; Turner v. Barker, 64 Mo. 457; Barnes v. Allison, 166 Mo. 103. (3) No case cited by the appellants, or which can be cited, gives any countenance to her contention that she can try by bill in equity the defendants' title to this five-foot strip of ground. The defendants are in possession of it and have been for a number of years, claiming it as their property under a valid and bona fide claim. Simply calling it a nuisance does not give a court of equity, jurisdiction, and neither she nor the city could oust the defendants from possession of this property except by an action in ejectment. The organic law of this State guarantees to the defendants, if they desire it, a trial of this issue by a jury. Sec. 28, art. 2, Const. (4) The defendants raised this specific objection by demurrer to the bill, raised it by objecting to the evidence, and under the express provisions of the statute they are entitled to raise it again in this court, because the petition states no cause of action, in that they have an adequate and complete remedy at law. The objection that the petition states no cause of action can be raised at any time. Sec. 602, R. S. 1899; State ex rel. v. Hoyt, 123 Mo. 357; Childs v. Railroad, 117 Mo. 414.

FOX, J. Burgess, J., absent.

OPINION

STATEMENT.

FOX, J.

That we may fully understand this case as presented by the pleadings in the trial court, we here insert them.

On the 22d day of December, 1899, the plaintiff below filed her petition in the Greene Circuit Court, and sued out a writ in due form thereon, returnable to the January term, 1900, of said court, which petition is as follows:

"The plaintiff for her cause of action in the above entitled cause states, that she is, and for the last sixteen years has been the owner in fee simple of the real estate situated in lots seventeen, eighteen and twenty in block five of the original town of Springfield, in Greene county, State of Missouri bounded and described as follows: Beginning at a point twelve feet east of the northwest corner of the public square; running from thence north fifty feet; thence west one hundred and twenty-nine feet; thence south eighty-one feet; thence east one hundred and seventeen and a half feet; thence north thirty-one feet; thence east twelve feet to the beginning.

"Plaintiff further states that at the time she acquired the title to said land, James Baker, her husband, became the owner in fee of the remaining part of said lot eighteen, and a strip twelve feet wide off of the west side of said lot seventeen, lying adjoining it on the east; that the lands so owned by her and her husband, in lot seventeen, constituted a strip twelve feet in width, extending along the west side of said lot, from the public square north to Olive street, a distance of one hundred and seventeen and a half feet; that said strip with three feet in width more, along the east side thereof, added to it, making fifteen feet in width in all, was dedicated to public use as a public highway more than fifty years prior to this date by the then owners thereof and has been continuously in such use during the whole of that time. That said dedication was and is for public use for pedestrians only and is a footway, and was in effect an extension of the sidewalk along the west side of the public square thence to Olive street on the north, and is now generally known by the name of the Baker Arcade.

"Plaintiff further states that the ground adjoining said Arcade on the west was divided into eight different lots fronting on the same, soon after said dedication was made; that the only access to them was by it, and that it has continued to be a public highway in much use ever since its dedication, and that when plaintiff purchased the property so owned by her, it was an important and active business center, which had added greatly to the value of her property and constituted the chief inducement to her purchase. That at the time she purchased the same all of said buildings were occupied for business purposes, and had been so from the time of their construction until removed by plaintiff in 1885, to make room for a large and commodious fourstory brick structure eighty-one feet wide by one hundred feet long, completed by her in the year 1886. That said building fronts fifty feet on said Arcade on the west side thereof, and thirty-one feet on the public square, and for the purpose of widening and making the said Arcade more useful, the front of said building was set back ten feet west of the west line thereof, making the Arcade twenty-five feet wide, instead of fifteen as formerly.

"Plaintiff further states that in the year 1868, the ancestors of the defendants herein, and from whom they derived their title to the same, were the owners in fee of all of said lot seventeen except the twelve-foot strip embraced in said Arcade as aforesaid; that they then erected thereon a large brick building three stories in height now known as the City Hall, the west wall of which corresponds with the east line of said three-foot strip which constitutes a part of said Arcade, thereby confirming said former dedication and rededicating the same.

"Plaintiff further states that in the year 1886, James Baker, her husband, reconstructed said Arcade, by elevating the grade thereof its entire length and breadth two feet, and by paving the same with nice flagstones at a cost of five hundred dollars. That defendants consented to and sanctioned and approved of said reconstruction, and by so doing they fully rededicated said three feet to public use, and by permitting and sanctioning the expenditure of the money which such reconstruction cost, they are estopped from denying such dedication.

"Plaintiff further states that said Arcade extends along the western line of defendant's lot and building, making it a corner lot instead of an inside lot lying in a closed corner, out of the way of public passage as formerly and adds more than fifty per cent to value of said property. That the contribution of a part of the ground occupied by said Arcade confers upon the remainder of said lot and the owners thereof valuable private easements or franchises in the whole of it, which did not exist and could not be exercised without it.

"Plaintiff further states that since the reconstruction of said Arcade the whole of it has been in continuous public use, as such highway, without interruption until the 26th day of November in the year 1890, when the defendants, at a late hour in the night, secretly slipped a cigar stand in there, and placed it upon the paving next to the wall of their building, thereby occupying all the ground so dedicated to public use by their ancestors and themselves, and a strip two feet and six inches in width dedicated as aforesaid by plaintiff and those from whom she derived title, extending from the south to the north end of the land owned by her in said lot 17, to which ...