Brinck v. Collier

• Decision Date: 31 March 1874
• Citation: 56 Mo. 160
• Parties: WILBUR F. BRINCK Appellant, v. JOHN P. COLLIER, Respondent.
• Court: Missouri Supreme Court

56 Mo. 160

WILBUR F. BRINCK Appellant,

v.JOHN P. COLLIER, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Voorhees & Mason, and S. N. Taylor, for Appellant.

Glover & Shepley, and Hitchcock & Lubke, for Respondent.

I. The question of the dedication of private property to public use depends on the circumstances of each particular case. (Smith vs. State, 3 Zabr., 723; Gamble vs. St Louis, 12 Mo., 617.)

II. To constitute such dedication, there must be first a plain, unequivocal intention to appropriate it to public use; (Becker vs. St. Charles, 37 Mo., 18; Pennington vs. Willard, 1 Rh. Isl., 93; Missouri Inst., etc. vs. How, 27 Mo., 211; Smith vs. State, supra; Badean vs. Mead, 14 Barb., 328; Gould vs. Glass, 19 Barb., 194; Dill. Mun. Corp., 602; 3 Ed.) second, an acceptance by user or otherwise, by the public; third, if user is the only proof of dedication, it must be shown to be adverse and not subordinate to the owner, and with claim of right long enough to amount to prescription. (Irwin vs. Dixon, 9 How. U. S., 10; Talbot vs. Grace, 30 Ind., 389; Smith vs. State, supra; Arstrott vs. Murray, 22 Iowa, 469; Dill. Mun. Corp., 604.)

III. The evidence negatives any such dedication.

IV. There is no evidence of any continuous or adverse user, such as is necessary.

V. In cities, to constitute an acceptance of dedication, there must be some action by the authorities from which a dedication may be presumed. (Detroit vs. D. & M. R. R., 23 Mich., 209-10; Holmes vs. Jersey City, 1 Beasley, 308; State vs. Carver, 5 Strob., 217; Baker vs. John, 28 Mich., 319; Irwin vs. Dixon, 9 Howard, U. S., 33; Page vs. Weathersfield, 13 Ver., 424; Blodgett vs. Royalton, 14 Ver., 288; Hyde vs. Jamaica, 27 Ver., 454; Holdane vs. Coldspring, 23 Barb., 103.)

VI. From the time this pass way was left open, the whole matter of opening alleys, etc., had been left with the city alone; and no burden of this sort can be thrown upon the city save by competent authorities. (Renard 184, p. 95; City Charter, Feb. 1843, Art. 3, § 2, clause 8, Art. 6, § 1.)

NAPTON, Judge, delivered the opinion of the court.

This was an action to recover damages from the defendant for building on an alley, claimed by the plaintiff to have been dedicated to the public use by defendant's father. There was a verdict for defendant and judgment accordingly. It appears in evidence, that George Collier, the father of the defendant, owned the entire block lying between Fourth and Fifth streets, and St. Charles and Locust in the City of St. Louis, and previous to 1842, had sold out all the block, except 100 feet on Fifth street by 127 on St. Charles street. Immediately south of his lot, at the corner of Fifth and St. Charles, Mrs. Graham since about 1845, owned up to Collier's line and the plaintiff is, or was, a tenant under a lease from Mrs. Graham.

About 1845, Collier put up some houses on the St. Charles street front, and between these tenements and the residence of Mrs. Graham he left an alley 12 feet wide on his lot, thus actually occupying only about 88 feet on Fifth street, with his buildings and their appurtenances. There was a fence on the north side of this alley separating it from the buildings and their appurtenances, and this alley was open from Fifth street to a public alley bounding Collier's premises on the east, running north and south through the block. Collier owned all the land north of the alley including the alley, and Mrs. Graham's lot was the only one immediately contiguous to the alley on the south side. There was evidence to show that this alley was mainly designed for the convenience of Collier's tenants in the six houses he built along St. Charles street, and that it was used by said tenants to haul wood and coal to their houses, and to remove ashes and other rubbish therefrom; and it also abundantly appeared that it was open, without gates, and used therefore by the public for a foot way and for carts whenever occasion presented, without objection from Collier or his tenants; and that this user continued up to the removal of the buildings in 1870, a period of about twenty-five years.

At one time Mr. Collier, or his representatives, enclosed the ends of this alley with gates for a short time, to enable him to make some repairs on the buildings or fence adjoining it. After it became, by accumulations of mud, &c., inconvenient or difficult to pass over, he had the alley paved and kept the pavement in repair at his own expense. He paid taxes on it during all this time as a part of his lot. The city authorities never exercised or attempted to exercise any control or superintendence over it as a public alley--but taxed it as a part of Collier's property.

These facts were established by a great number of witnesses; but as they were grouped together in an instruction and thus passed on by the jury, it will not be necessary to give any details of the evidence; and this instruction presents really the only question in the case, and is as follows: “If the jury believe from the evidence that George Collier, prior to 1840, owned the whole of block 98 of the City of St. Louis, and shortly after that year conveyed the east half of said block fronting on Fourth street, to parties who commenced building thereon, and about that time there was an alley opened through said block extending north and south from Locust to St. Charles street, which alley was in 1844 or 1845, declared by the City of St. Louis to be a public alley; and about the year 1843, said Collier sold and leased to other parties the south-west portion of said block, leaving in himself a lot in the north-west corner of said block containing a front of about 100 feet on Fifth street, and running east to said alley; that in about the year 1845, said Collier erected on said last mentioned lot a row of houses fronting on St. Charles street, and extending from Fifth street to said alley; and that for the purposes of enabling the occupants of said houses to get their coal, wood and other supplies, and to remove their dirt, slops and ashes, he left open a way wide enough for the passage of vehicles in the rear of said houses through their whole extent, and that such way was at all times used by said occupants for some or all of said purposes; that said way was always improved, paved and kept in order by said Collier and those claiming under him, and the City of St. Louis never exercised any dominion, care or control over the same, nor improved it or declared it to be a public alley; that from the time of the building of said houses by said Collier, the City of St. Louis always assessed said way as a part of said lot to said George Collier and those claiming under him for taxes, and they paid taxes thereon; that those claiming said lot under George Collier, about the year 1857 or 1858, fenced up said way at the east and west ends thereof, and prevented any entrance thereto for a week or more, then the jury are instructed that although they may find that for more than 20 years before 5th of May, 1870, other persons than the occupants of said house occasionally or often used said way as a matter of convenience in passing from Fifth street to said alley, running from Locust street to St. Charles street, or from said alley to said Fifth street, yet that no dedication of said way to public use has been shown as a matter of law from the facts above stated.”

A number of instructions were asked by the plaintiff, but as they embrace propositions just the counterpart of the one given, an examination of the propriety of the instruction already quoted, will necessarily determine the question of law involved in the case.

There have been several cases determined by this court in relation to this question, viz: Gamble vs. the City of St. Louis, 12 Mo., 618; Stacy vs. Miller, 14 Mo., 478; Hannibal vs. Draper, 15 Mo., 634; Missouri Institution, etc., vs. How, 27 Mo., 211; Becker vs. St. Charles, 37 Mo., 14; Rutherford vs. Taylor, 38 Mo., 315.

An examination of these cases will show that whe there is a concurrence in regard to the leading principles governing the subject, the application of these rules to particular cases depends very much on the peculiar facts of each case. To constitute a valid dedication of land to the public, there must be a clear intention on the part of the owner to dedicate, which may be established in various modes, some of which are provided by statute, and others by such acts or declarations in pais as are satisfactory evidence...