Bennett v. City of Nevada
| Decision Date | 05 July 1919 |
| Parties | MATTIE BELLE BENNETT v. CITY OF NEVADA, Appellant |
| Court | Missouri Supreme Court |
Appeal from Vernon Circuit Court. -- Hon. B. G. Thurman, Judge.
Reversed.
A. G King and M. T. January for appellant.
(1) Ejectment must be brought against a party in possession, and plaintiff must allege in his petition that defendant is in possession, and must prove it when defendant denies possession. Clarkson v. Stanchfield, 57 Mo. 573; Shaw v. Tracey, 95 Mo. 531. (2) A city can open or establish streets only by ordinance. R. S. 1909, secs. 9261 9262. (3) When the statute prescribes that the powers of a city may be exercised by the passage of an ordinance, no other method is allowable. Rumsey Mfg. Co. v. Schell City, 21 Mo.App. 175. (4) A municipality can only be held responsible for the act of its officers when the act is authorized by ordinance, in cases where the city, as a corporation, has power to authorize action only in that way Stewart v. City of Clinton, 79 Mo. 603; Werth v. City of Springfield, 78 Mo. 107; Reed v. Peck, 163 Mo. 333.
Chas. E. Gilbert for respondent.
(1) The owner of land wrongfully taken by a city and converted into and used as a public street, may maintain ejectment against the city for its recovery. Armstrong v. City of St. Louis, 69 Mo. 309, Anderson v. City of St. Louis, 47 Mo. 484; Walther v. Warner, 25 Mo. 277; Hammerslough v. City of Kansas, 57 Mo. 221; Warner v. Railroad Co., 57 Mo. 275; Evans v. Railroad Co., 64 Mo. 453; Bradley v. Mo. Pac. Ry. Co., 91 Mo. 500; McCarty v. Clark County, 101 Mo. 182.
MOZLEY, C. White and Railey, CC., concur.
This action is ejectment, with ouster laid on the day of July, 1915, and is brought against the City of Nevada alone as defendant.
The real estate involved is described as follows: "Commence at the southwest corner of the east half of Lot two of the northwest quarter of Section Four, in Township Thirty-five, Range Thirty-one, in the City of Nevada, County of Vernon and State of Missouri, from thence run north twenty rods, thence east twenty rods, and from the point thus found as a place of beginning, run north ninety feet, thence east one hundred and sixty feet, thence south ninety feet, thence west one hundred and sixty feet to place of beginning." It will thus be seen that the lot is one hundred and sixty feet east-and-west and ninety feet north-and-south. The particular part of the lot involved here is twelve or fifteen feet off of the south end thereof, which lies between Main and Ash Streets. Plaintiff claims that the defendant city, on the date above set forth, ousted her from the possession thereof, and took the possession itself, and that the street commissioner, acting for the city, as it is alleged, did great damage thereon by plowing and grading the soil. The answer of defendant was a general denial. The case was tried before a jury in the Circuit Court of Vernon County, at the February term, 1917, which resulted in a verdict for plaintiff for possession of the land in controversy and fifty dollars damages, and monthly rents and profits fixed at $ 1.50 per month, upon which verdict judgment was duly entered. Motion for new trial being overruled at the same term of the court. defendant duly appealed the case to this court.
About June 15, 1915, at a meeting of the city council of defendant, it was verbally moved, seconded and carried "that the street commissioner, under the supervision of the city engineer, be instructed to put Floral Avenue, between Main and Ash streets (the strip in controversy) in proper condition." Counsel for both sides agree that no ordinance was passed authorizing the work to be done. Counsel for plaintiff proved by the the city clerk that the City of Nevada had never passed an ordinance with reference to this street, this with the view of relying upon the verbal motion or resolution above set forth, upon which predicate he seeks to bind the corporation. Mr. January, for the city, made the following objection in the nature of consenting to the correctness of the proof offered by plaintiff that no ordinance had ever been passed:
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