Becker v. City of St. Charles

• Decision Date: 31 October 1865
• Parties: VALENTINE BECKER, Respondent, v. THE CITY OF ST. CHARLES AND GEORGE H. SENDEN, CITY MARSHAL, Appellants.
• Court: Missouri Supreme Court

37 Mo. 13

VALENTINE BECKER, Respondent,

v.THE CITY OF ST. CHARLES AND GEORGE H. SENDEN, CITY MARSHAL, Appellants.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Charles Circuit Court.

Theodore Bruere, for appellants.

I. Dick, conveying at a time when he was owner of the whole of lot 18, Boone's survey, through which Eighth street, when established, had to be located, by a deed of trust to King, trustee, that part of said lot 18 lying west of Eighth street, hereafter to be opened, and bounding the land so conveyed on the east by Eighth street, so mentioned, thereby reserved and dedicated the land required for Eighth street to the public in the event of sale under said deed of trust; and said sale having actually taken place, the dedication thereby became absolute and final.

II. Dick, giving by said deed said trustee power to sell said real estate, or so much thereof as should be necessary, together with its appurtenances and to convey said real estate and appurtenances in pursuance of said sale, thereby bound the trustee to sell and convey the land according to the description contained in said deed, with the right to said Eighth street; and any deeds made under said deed of trust and sale, by King, contain as much a dedication of said street to the public as if made by Dick himself.

III. Even without any formal deeds or acts done by Dick, his first deed to Valentine Becker bounding the land therein conveyed by Eighth street, as laid out according to a plat filed by Andrew King, trustee, in the recorder's office of St. Charles county, May 31, 1860, amounts to a dedication of said street to the public, and any subsequent deeds of Isaac Dick cannot divest the public of the right thus acquired.--Washb. Eas., 145, § 26, & 138, § 17; 3 Kent, 604, & 574, n., new ed.; 2 Smith's L. C., 180; Ang. on High., § 149; 2 Wend. 475; Matter of 32d street, 19 Wend. 130; 8 Mo. 457; Missouri Inst. v. How, 27 Mo. 216; McKee v. City of St. Louis, 17 Mo. 191; Godfrey v. City of Alton, 12 Ill. 29-35.)

IV. The proper authority to take charge of what has thus been actually dedicated is the local corporate body within which the same is situate; here, the City of St. Charles. (Washb. Eas., p. 156.)

V. V. Becker is, under his deeds from Dick and Walters, estopped from denying against the City of St. Charles the recitals contained in said deeds. If these deeds contain a dedication, the City of St. Charles being the grantee under said dedication is to be considered a party thereto in law.

VI. All acts in pais done by Dick, or by his authority, with the intention to dedicate Eighth street to the public use, are binding upon him and those claiming under him. The acts of Dick in making out, at the sale made by A. King, a plat on which he laid out Eighth street fifty feet wide; in laying out lots on said street, and as a part of an addition to the City of St. Charles; in having the property thus sold by the trustee, at his special request, in his presence, and without any objections on his part; in executing after said sale, a number of conveyances, in which he refers to the plat according to which said trustee sold, and specially to Eighth street as laid out thereon; in having, after said sale, the trees cut down in order to clear the street,--are explicit manifestations of his intention to make such dedication. (Ang. on Highw., § 142; Washb. Eas., p. 139, § 19.)

VII. Though ordinarily there is no other mode of showing an acceptance by the public of a dedication of a street than by the public using it, such acceptance may be shown by any acts done by the City of St. Charles to signify the same. In this case it was the notice given to Dick and Walters to open the street long before V. Becker became the owner of their property, and a resolution of the city council to that effect. (Washb. Eas., p. 139, § 21, & p. 145, § 26; 19 Wend. 130.) 26 Barb. 634, by any official act of corporation a sufficient acceptance can be made. State v. Carver, 5 Strobh., cited by respondent, expressly states that if the town council signify this acceptance by any acts, without even the use of the public, that is sufficient.

E. A. Lewis, for respondent.

I. Even if any or all the circumstances relied upon could be regarded as dedicatory acts, yet, as there was no evidence of any acceptance on the part of the city or the public, by user or otherwise, there could not be a complete dedication. (Washb. Eas. 141-2, 148-9, 151, 153; 2 Greenl. Ev. § 662; State v. Carver, 5 Strobh. 217; Livandais v. Municipality, 16 La. 509; David v. Municipality, 14 La. An. 872; People v. Beaubien, 2 Doug., Mich. 256; Bissell v. R. R. Co., 26 Barb. 634.)

II. No act or declaration of Dick prior to the trustee's sale amounted to more than the expression of an intention thereafter to dedicate Eighth street; and such declarations of intention are held not to constitute sufficient evidence of a dedication. (Washb. Eas. 133-4, 136.)

III. The attempt of the trustee to dedicate Eighth street was a mere nullity; for 1st, that portion of the ground never was conveyed to, or vested in him, at all--the deed of trust describing the property conveyed as “lying west of Eighth street, to be hereafter opened”; 2d, his attempt was made more than ten days after the sale and satisfaction of the trust, and the extinguishment of all his power over the land as trustee or otherwise. (Washb. Eas., p. 132, § 11; Ward v. Davis, 3 Sandf. Sup. Ct. 502.)

IV. Any right of highway arising from the sale by plat, or from deeds executed by Dick or the trustee, could only be claimed by the grantees themselves, or persons claiming under them, or by some one who, upon the faith of the recitals or descriptions in such deeds, had acquired a vested interest in the street, which it would be a frand upon him to destroy; and as the city does not appear to have occupied either of these positions, it can set up no such claim in the premises. (Washb. Eas. 142-4, 147; Badeau v. Mead, 14 Barb. 328.) Washb. Eas., p. 45, § 26, refers to Barclay v. Howell, 6 Pet. 498, which on examination will be found inapplicable to a case like the present. The other cases are those where the streets had been laid off by public and duly authorized officers.

V. As the city was not a party to any of the deeds referred to, it cannot set up any estoppel as arising from them. (Cottle v. Snyder, 10 Mo. 763; Jackson v. Woodruff, 1 Cow. 276; Betts v. New Hartford, 25 Conn. 180.)

LOVELACE, Judge, delivered the opinion of the court.

This action was commenced for the purpose of obtaining an injunction against the defendants' opening a street through the plaintiff's enclosure. The temporary injunction was granted in the vacation of the Circuit Court of St. Charles county, and at the regular term of the court after the defendants had answered and moved to dissolve, the injunction was made perpetual; to reverse which, the case is brought here by appeal.

The evidence shows that the whole property was originally owned by one Isaac A. Dick, who, in 1857, conveyed to Andrew King, as trustee to secure the payment of a debt due Samuel B. Smith, all that portion “lying...