Bingham v. Kollman

Citation165 S.W. 1097,256 Mo. 573
Decision Date03 March 1914
Docket NumberNo. 16,496.,16,496.
PartiesBINGHAM v. KOLLMAN et al.
CourtUnited States State Supreme Court of Missouri

Laws 1865-66, p. 200, permits persons interested in city property to petition the county court to vacate a street, describing the property to be vacated, and giving the names of the persons affected, and provides that the petition shall be filed 30 days before the next sitting of the court, and that notice shall be given for the same time by publication, or posting, and, if the petition be not opposed, vacation may be ordered, but, if it is opposed, the application shall be continued to the next term, and that no vacation shall be decreed unless the owners of two-thirds of the adjoining property consent in writing, acknowledged before a justice of the peace. A petition to vacate was signed by every owner of land on both sides of the strip to be vacated, and a plat was attached to the petition which set out the name of every owner of abutting property on both sides of the strip and the number of feet of each tract owned, which plat was referred to as a part of the petition, and filed with the county court 30 days before the next term of court, and there was no opposition to the petition. Held, that the proceedings were sufficient to give the county court jurisdiction to vacate the street; and it was not necessary that the names of the signers of the petition should be in the body of the petition.

2. MUNICIPAL CORPORATIONS (§ 657)—VACATION OF STREETS—NECESSARY PARTIES— CITY.

The city of Kansas City was not a necessary party to a proceeding brought under Laws 1865-66, p. 200, to vacate a street, though it was a proper party; the only necessary parties being the owners of the abutting property, since they alone would be entitled to compensation for the closing of the street.

3. MUNICIPAL CORPORATIONS (§ 657)—VACATION OF STREETS—JURISDICTION—RECITALS OF ORDER.

The order of the county court, vacating a street, recited a finding upon the evidence of the filing of the petition to vacate by the owners of the property bounding the strip, as shown on a plat attached to the petition, which had been filed more than 30 days before court convened, and also recited that it appeared that notice of the pendency of the petition was duly given for 30 days before the first day of the June term of court by written notices set up in three public places, as shown by the return of the constable, and that the consent of two-thirds of the owners of the property adjoining the street had been obtained to such vacation, which consent was duly acknowledged before a notary public, and filed for record. Held, that the recitals of the order showed jurisdiction in the county court to vacate the street, under Laws 1865-66, p. 200, providing the proceedings necessary to vacate a street.

4. JUDGMENT (§ 496)—COLLATERAL ATTACK.

The orders and judgments of a county court, made in the exercise of its statutory powers conferred upon it, are entitled to the same favorable presumption, arising either from the statements or the silence of its records, which is accorded in like cases to circuit courts or others of general jurisdiction, and its judgments can only be collaterally attacked by affirmatively showing by the record a want of jurisdiction.

5. STATUTES (§ 123)—TITLES AND SUBJECT.

Laws 1865-66, p. 200, entitled "An act providing for the vacation of streets, alleys, public squares and grounds of towns and cities," etc., sufficiently included, within its title, provisions authorizing the vacation of any street, etc., by a petition to the county court by property owners upon the giving of notice and filing of consent.

6. MUNICIPAL CORPORATIONS (§ 657)—PROCEEDINGS.

Under Rev. St. § 6318, providing that when the records in the recorder's office contain a record of any instrument purporting to convey realty, which has been claimed or enjoyed through such instrument for 10 consecutive years, the instrument and a certified copy thereof shall be prima facie evidence of its execution, genuineness, and time of record, the fact that the written consent of property owners to the vacation of a street was acknowledged before a notary public instead of a justice of the peace, as required by Sess. Acts 1865-66, p. 200, would not affect the right of one who had held the vacated tract for 10 consecutive years through such consent so acknowledged.

7. CONSTITUTIONAL LAW (§ 63)—MUNICIPAL CORPORATIONS (§ 661)—VACATION—POWER.

In absence of constitutional restriction, plenary power over streets may be exercised by the Legislature or delegated to a municipality, but a legislative grant of power to vacate must be made expressly or by necessary implication.

8. MUNICIPAL CORPORATIONS (§ 657)—VACATION OF STREETS—AUTHORITY OF CITY.

Laws 1875, p. 204, art. 3, § 1, subd. 7, did not expressly or impliedly authorize the city of Kansas City to vacate streets.

9. TAXATION (§ 788)—SALE.

In an action to quiet title under a tax deed, it cannot be claimed that there was no evidence that land was subject to taxation, so as to authorize its sale for nonpayment of taxes, in view of Kansas City Charter 1889, Act 5, § 58, p. 56, making tax deeds prima facie evidence that the taxes were not paid at the time of the sale, and that the land was subject to taxation for the years stated in the deed.

10. TAXATION (§ 754)—TAX DEEDS—SUFFICIENCY.

A tax deed, which is a literal copy of the form contained in Kansas City Charter 1889, p. 54, §§ 58, 75, is sufficient.

11. EQUITY (§ 150)BILL—MULTIFARIOUSNESS.

In an action to quiet title against several defendants, some of whom claimed title to the whole tract, the defendants, claiming title to the whole tract, cannot claim that the petition is multifarious.

Appeal from Circuit Court, Jackson County; R. B. Middlebrook, Judge.

Action by Jessie R. Bingham against Herman C. Kollman and Kansas City and others. From a judgment for plaintiff, defendants Kansas City and Alfred Ford and Elizabeth Ford appeal. Affirmed.

This is suit under section 2535 of the Revised Statutes of 1909, to quiet title. The land in dispute is 30×120 feet, and is a part of what was originally known as George street, as laid out and dedicated in 1858 by Joseph C. Ransom and others in a subdivision of lots and public highways made by them in the city of Kansas, now Kansas City. The strip of land in dispute runs north and south and intersects at right angles with Independence avenue, now Admiral boulevard.

Plaintiff alleges that she is the owner in fee in said lands under a purchase of the same when sold by Kansas City for taxes for the years 1903 and 1904. That defendants Kansas City, Alfred G. Ford, and Elizabeth Ford, and a number of other persons made defendants, claim some title, wherefore the petition prayed the court to define and adjudge the respective titles of the parties to said land. The defendant Kansas City answered separately, averring that the real estate is a public street. Defendants A. G. and Elizabeth Ford answered, denying that the statements of the petition showed that the land was individually owned or subject to taxation, or that plaintiff's purchase thereof for due taxes was in accordance to law; averring that there was a misjoinder of all the defendants except Kansas City and Alfred Ford and wife; pleaded the statute of limitation for 10 years; admitting that the land sued for is a street in Kansas City; averring that said defendants were owners in fee of the tract subject to the easement of said city; averring that plaintiff was without title because her muniments of title were void. There is not substantial dispute to the following facts:

In 1858 Joseph C. Ransom and others platted certain lands belonging to them as "Ransom and Tally's addition to Kansas City, Mo.," which plat was duly acknowledged and recorded, and showed the dedication of George street (now Tracy avenue), 30 feet wide, extending north and south the length of the addition, as a public street. At right angles to this street was laid off on the plat two other streets, now known as Admiral boulevard and Independence avenue. When Independence avenue was graded by the city up to Tracy avenue, the surface of the latter was left 15 or 20 feet above the grade of Independence avenue, making Tracy avenue impassable. Thereupon, on the 30th day of April, 1878, the owners of the property on both sides of Tracy avenue, for its full length, petitioned the county court of Jackson county to vacate that part of Tracy avenue lying between Admiral boulevard (then Sixth street) and Independence avenue, for the reason that the heavy cutting required would greatly damage their property. Thereafter, at the June term, 1878, the county court acceded to the request of its petitioners, and declared said property of Tracy avenue vacated as a public street, and described, in its judgment, boundaries of said street so vacated. This petition was accompanied by a plat referred to and made a part thereof, and which showed the names of each owner on both sides of the street, and the number of feet of ground owned by him, to be the same as the signers of the petition. The consent in writing of the owners of more than two-thirds of the property adjoining the street to be vacated was acknowledged before a notary public and filed for record in the recorder's office. The decree of the county court recited these facts, and also that notice of the pendency of the petition to vacate the street was given for 30 days before the first day of the June term by written notices set up in three of the most public places in the city of Kansas, now Kansas City.

After the vacation of Tracy avenue, the city assessed the vacated street for taxes as private property, and has continued so to assess it up to the present time. The title of the plaintiff rests upon two tax deeds. One tax deed is for the...

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