Brown v. City of Carthage

• Decision Date: 26 March 1895
• Parties: BROWN v. CITY OF CARTHAGE et al.
• Court: Missouri Supreme Court

30 S.W. 312

128 Mo. 10

BROWN v. CITY OF CARTHAGE et al.

Supreme Court of Missouri, Division No. 1.

March 26, 1895.

DEDICATION — EFFECT OF RESERVATIONS — BOUNDARIES.

1. The reservation in a plat of the "trees and rocks" on the streets and alleys does not impair the effect of the plat to vest in the public a fee in the streets and alleys, by virtue of Rev. St. 1889, § 7313, providing that a plat of a city, "certified and recorded," shall vest the fee of "such parcels of land as are therein named" in such city.

2. Where the monuments established by a plat are those fixed by the government survey, and those making the dedication in the actual location of the lines of the plat included within the lines of private property a strip of land which, according to the true location, is within the boundaries of the street, the government monuments prevail.

Appeal from circuit court, Jasper county; W. M. Robinson, Judge.

Action by William Brown against the city of Carthage and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Thomas & Hackney, for appellant. Chas. Farrow and H. H. Harding, for respondent.

BRACE, C. J.

This is a proceeding by injunction in the Jasper circuit court to restrain the city of Carthage from appropriating for street purposes a strip of land about nine feet in width within the inclosure of plaintiff on his premises fronting on Case street in "Parson and Case's addition to the city of Carthage." A temporary injunction was granted, which, on the hearing, was dissolved, and judgment rendered for the defendants, from which the plaintiff appeals.

Case street, "80 feet wide and 80 rods long," was dedicated to public use as a street, by the proprietors, by a plat of said addition, duly acknowledged on the 1st and recorded on the 3d day of January, 1868, in which the proprietors reserved the right to appropriate to their own use "the trees and rocks" on the streets and alleys dedicated. The plat, and the description thereon, show the location, length, and width of the streets and alleys, size of lots, and location of the addition on the southwest quarter of section 4, township 28, range 31, with reference to the lines of that sectional subdivision according to government survey. It does not purport to have been made from an actual survey of the ground, and there is no evidence tending to show that the plat was made from any such survey. Consequently, there were no monuments by which the location of the corners and lines of the lots and streets could be located. The only way of ascertaining their location on the ground was by courses and distances from the government lines. It appears from the evidence that the addition was covered with brush and timber, and that in the spring after the dedication the proprietors caused the brush and timber to be cut away in the streets, and that at that time measurements were made by their agents by a chain, without other instruments, for the purpose of ascertaining the lines of the streets and the corners of the lots, and that stakes were driven along the lines of Case street, as ascertained by that measurement; that afterwards lots were sold and inclosed upon each side of said street. In the fall of 1873 the plaintiff...