Bigelow v. City of Springfield

• Decision Date: 29 January 1914
• Citation: 162 S.W. 750,178 Mo.App. 463
• Parties: JOSEPH BIGELOW, Respondent, v. CITY OF SPRINGFIELD, MISSOURI, Appellant
• Court: Missouri Court of Appeals

162 S.W. 750

178 Mo.App. 463

JOSEPH BIGELOW, Respondent, v. CITY OF SPRINGFIELD, MISSOURI, Appellant

Court of Appeals of Missouri, Springfield

January 29, 1914

178 Mo.App. 463 at 476.

Original Opinion of January 29, 1914, Reported at: 178 Mo.App. 463.

Motion overruled.

FARRINGTON J. Robertson, P. J., and Sturgis, J., concur.

OPINION

ON MOTION FOR REHEARING.

FARRINGTON J.--

Respondent in a motion for a rehearing insists that our opinion is in conflict with the opinion in the case of McCarty v. Clark County, 101 Mo. 179, 183, 14 S.W 51. We have examined that case, and conclude that respondent's counsel has misconstrued the answer filed in the case at bar. In the motion for a rehearing counsel contends that the city by its answer alleges title in and admits possession of the lot in question. We quote the following statement found in the motion: "This question is presented by the allegations of the answer, which alleges title in the city and admits possession on the part of the city." This assertion can not be borne out. The amended answer, on which the case was tried, is in part as follows: (After a general denial).

"Further answering, defendant states that by a proper judgment and decree of the circuit court of Greene county, Missouri, duly entered of record at the May term, 1903, of said court, in book 72, at page 71 of the records of the circuit court of Greene county, Missouri, plaintiff Joseph Bigelow was at the time by said judgment and decree divested of any and all right, title and interest that he may have had in and to the fifty feet of lot eight in G. S. Catlin's addition to the city of Springfield, Missouri, mentioned in plaintiff's petition. Defendant further alleges the fact to be that for more than twenty whole years next before the filing of this present suit the traveling public have openly, notoriously and adversely used and treated said fifty feet as a public highway exclusively and that such use was acquiesced in by the plaintiff and his grantors."

The answer does aver that the title has been devested out of Bigelow but nowhere avers that it was vested in the city of Springfield. It also avers that the lot in question had been used openly, notoriously and adversely as a public highway by the traveling public and that such use had been acquiesced in by the plaintiff. If the city has acquired an easement in the land for street purposes under the Statute of...