Bobb v. City of St. Louis

• Decision Date: 05 July 1918
• Docket Number: No. 19430.,19430.
• Parties: BOBB v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

205 S.W. 713

276 Mo. 59

BOBB v. CITY OF ST. LOUIS.

No. 19430.

Supreme Court of Missouri, Division No. 1.

July 5, 1918.

Rehearing Denied October 8, 1918.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Ejectment by Clara P. Bobb against the City of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

This is ejectment, instituted February 27, 1912, in the circuit court for the city of St. Louis, to recover a strip of land in said city 20 feet wide, extending 1170 feet north and south from the north line of Manchester Road to the south line of Bischoff avenue, and bounded on the west by a line at all points 30 feet east of the west line of Cooper street. This land was in St. Louis county up to the time of the adoption of the Scheme and Charter October 22, 1876, by which it was included in the city.

The defendant city claims the land as a part of Cooper street and in its answer admits its possession and denies the other allegations of the petition. As an affirmative defense, it pleads that the strip of ground was dedicated to public use as a public highway, by a plat of dedication executed May 26, 1868, and filed in the recorder's office of the city of St. Louis on or about the 10th day of June, 1869, by John H. Bobb, now deceased, and William C. Jamison, as trustees, and by Julia A. Letcher and Julia A. Ashbrook; that said parties stated in the dedication that they were owners of the said strip; that the dedication was accepted by the public and thrown open to public use, and has ever since been openly and notoriously used as a part of the street; and that plaintiff is barred of whatever right he might otherwise have by the statute of limitations. As a second special defense, it pleaded that about May 26, 1868, the said Bobb and William C. Jamison, trustees, together with Julia A. Letcher and Julia A. Ashbrook, executed a plat dedicating the strip to public use forever as a public highway known as Cooper street, and that in said plat and dedication they represented themselves to be the owners; that said plat was filed in the recorder's office of the city of St. Louis on the 10th day of June, 1869; that the city thereupon accepted said strip so dedicated as a public highway; and that it was opened and has been used as such ever since, and improved by the city by paving the roadway, putting in sidewalks, sewers, lamp posts, and other improvements located thereon, by all of which the plaintiff is estopped from asserting title. For a third defense, it pleads that, since about the year 1869, the city has carried upon the public records of its street department Cooper street as a public highway 50 feet wide between Manchester Road and Bischoff avenue, and, believing that it had goad title and ignorant of plaintiff's claim, has improved the street upon said land at great expense to the public, all of which the plaintiff had knowingly and fraudulently permitted, and had thereby forfeited all right to complain, and is estopped from asserting it.

Isaac A. Letcher is the common source of title, having acquired the land in which this strip is included in 1838, and it is admitted that in 1862 the title had become well vested by deeds in Julia A. Letcher, his wife, and John Letcher, Robert F. Letcher, Jacob J. Letcher, and Julia A. Ashbrook, his children; the last named having intermarried with one Levi L. Ashbrook. On August 6, 1862, Robert F. Letcher conveyed his undivided one-fifth of the ten acres to his mother and Mrs. Ashbrook, who, on June 27, 1866, conveyed an undivided one-fifth of the ten acres to William C. Jamison and John H. Bobb for the sole use and benefit of Robert F. Letcher for life, and at his death to the use of Julia A. Letcher and Julia A. Ashbrook, and the survivor of them for life, and at the death of the survivor to the use and benefit of the children and descendants of Mrs. Ashbrook according to the law of descents and distributions, then to the heirs of Julia A. Letcher. The husband of Mrs. Ashbrook joined in this conveyance.

Up to June 10, 1869, Cooper street between Manchester Road and Bischoff avenue had been a public road 30 feet wide, including none of the land in controversy. On that day there was filed in the office of the recorder of deeds for St. Louis county the plat of Fairmont addition. It was signed by Julia A. Letcher and Julia A. Ashbrook and husband, and also by William C. Jamison and John H. Bobb as trustees, and dedicated, among other streets, Cooper street 50 feet in width which included the strip now in controversy. This plat and dedication was unsealed and constitutes the only express dedication of the land to public use as a street. The owners were then all in possession of said land. There was a fence, or at least the remains of a fence, between this strip and the 30 feet originally occupied by Cooper street, until 1890, when it disappeared.

In December, 1870, Abraham Siegel and John H. Bobb had become owners in fee of the entire ten acres, and so continued until September 17, 1884, when Bobb conveyed his interest to Siegel, who remained in possession as owner until January 5, 1887, when he conveyed it to the Planet Property & Financial Company, which remained in possession as owner until 1904, when it conveyed to John H. Bobb. The defendant city took exclusive possession of the strip sued for in 1909, and has continued in possession ever since. There was some evidence of its use by the public before that time.

John H. Bobb died March 10, 1310, leaving a will by which he devised all his residuary estate, including any interest he may have had in said land at the time of his death, to this plaintiff, who is his widow, and claims the property in question under the will. At the trial evidence was introduced relating to the possession and use of the property by the parties interested or claiming an interest therein, including the public.

The cause was heard by the court without the intervention of a jury, and numerous declarations of law in the nature of instructions were asked by the plaintiff, some of which were given as asked, others modified by the court and given, and others refused.

Both plaintiff and defendant requested the court in writing to state in writing its conclusions of fact as found by the court separately from its conclusions of law, in accordance with the provisions of section 1972 of the Revised Statutes of 1909. This it did after stating the facts agreed upon by the parties, as follows:

"From them the court concludes that the only fact or facts which it is expected to find relate to a right of way over the land in question, acquired by adverse user for a period of more then ten years before the commencement of this suit. Considering this testimony, while keeping in mind the fact that the public had already acquired a right of way over a road 30 feet wide, and adjoining the land in question on the west, the court finds that a right of way over the land in question had not been acquired by the defendant by prescription or adverse user for more than ten years prior to the commencement of this suit."

The court thereupon declared the law as follows:

"The court, of its own motion, declares the law applicable to the facts in this case as follows, to wit:

"First. Where two or more persons, assuming to be the owners of land adjoining a public highway, undertake in the manner prescribed by the statutes of this state to dedicate a strip thereof for the purpose of widening said highway, and where the instrument signed by them purports on its face to be the act of the owners of said strip, and contains no limitations or exceptions as to the interest which it purports to dedicate, such an instrument is in the nature of a grant, and carries with it a representation or assurance of title in the nature of a warranty, especially where the owners of other tracts of land have joined in the same instrument for the purpose of widening, opening, and dedicating continuous streets, according to a general plan. If the instrument so executed is defective, owing to the fact that one or more persons having an interest in common with the dedicators fail to join in the instrument, still it is binding upon those who do join, and if after so executing and recording such instrument those, or any of those, who are joined therein, acquire the outstanding interest of those who did not join, the outstanding interest so acquired inures to the benefit of the grant, and renders the title of the grantee complete. In such case the dedicator who acquires an outstanding interest is estopped to...