Burns v. The City of Liberty

• Citation: 33 S.W. 18,131 Mo. 372
• Parties: Burns, Appellant, v. The City of Liberty
• Decision Date: 03 December 1895
• Court: United States State Supreme Court of Missouri

33 S.W. 18

131 Mo. 372

Burns, Appellant, v. The City of Liberty

Supreme Court of Missouri, Second Division

December 3, 1895

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

D. C Allen for appellant.

(1) In order to a dedication there must, of course, be the ownership of property which can be made the subject of dedication. Here Major Lightburne did not pretend to own, nor Allen and Burns to receive from him, any land east of the west line of the road or street; that is, any interest in the seven-foot strip taken off the east side of section 7. The plat of the addition shows that A. and B. claimed no interest in the seven-foot strip. Hence, as a matter of fact, A. and B. could not have made a dedication of any thing or interest east of the west line of the seven-foot strip. (2) In order to constitute a valid dedication to the public there must be an intention to dedicate. 2 Herman's Estoppel and Res Adjudicata, p. 1279, sec. 1142; 3 Washburn on Real Property [5 Ed.], p. 79; Mo. Institute v. How, 27 Mo. 211; McShane v. Moberly, 79 Mo. 41; Vossen v Dautel, 116 Mo. 379. (3) The court erred in the matter of giving and refusing instructions.

C. L Dougherty, Simrall & Trimble and Sandusky & Sandusky for respondent.

(1) There is not an allegation in respondent's amended answer, nor in the pleadings in the case, which mentions or alludes to Lightburne's addition. The evidence, therefore, based on the plat of that addition has nothing to support it. Evidence is inadmissible which is not based on the pleadings. 1 Greenleaf on Evidence [10 Ed.], sec. 51; Lanitz v. King, 93 Mo. 513-519; Brooks v. Blackwell, 76 Mo. 309; 1 Taylor on Evidence, p. 233, sec. 217. (2) Nor would those testimonies be admissible under the general denial in respondent's amended answer. If respondent intended to rest its defense upon any fact not included in the allegations necessary to support the appellant's case, it was necessary for it to set it out in ordinary, concise language, or be precluded from giving evidence of it on the trial. Northrup v. Ins. Co., 47 Mo. 435; Musser v. Adler, 86 Mo. 445. (3) There is not a particle of evidence in the case that respondent ever approved of the plat of Lightburne's addition, or recognized it, or knew of it in any way, by act of its city council, or that its officers did prior to the trial of this cause. On the contrary, Allen and Burns submitted the plat of their addition to the appellant's city council, and the appellant, by ordinance passed and approved July 18, 1887, approved it. A copy of this ordinance is to be found on plat O -- the same being the plat of A. and B.'s addition. Respondent is, therefore, bound by all shown in the plat of A. and B.'s addition, but by nothing in the plat of Lightburne's addition. (4) The plat of Lightburne's addition was not in compliance with the provisions of chapter 139, Revised Statutes, 1879, entitled "Of Plats," -- R. S. 1879, vol. 2, p. 128 -- and was, therefore, null and void, and its record conveyed notice to no one.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action of ejectment for a strip of land in Clay county, described as follows: A part of lot number 8 in block 6, as marked and numbered on the plat of Allen and Burns' addition to the city of Liberty, bounded as follows: Beginning at the southeast corner of said lot, thence running north on the east line of said lot a distance of sixty-nine feet and nine and three fourths inches to the northeast corner of said lot, thence running west on the north line of said lot a distance of two feet to a point thereon, thence running south a distance of sixty-nine feet and nine and three fourths inches to a point on the south line of said lot, thence east two feet to the place of beginning.

The answer is, first, a general denial, with the exception that it admits that defendant is a municipal corporation. It then avers: "That about the year 1857 the Liberty and Meeks' Ferry road, sometimes called the 'Owens' Ferry road,' and in 1857 designated by the city council as 'Lightburne street,' was established, located, and opened, and has been in use as a public street continuously since said date; that the property in controversy is a part of said street; that Alvan Lightburne, who owned the land on the west, when said highway was opened, continued the owner thereof until May 14, 1887, when he conveyed the same to Burns and Allen; that said street during all said time was used and repaired and maintained as a public highway; that when Lightburne conveyed his land to Allen and Burns he surveyed and deeded the same to the west line of said street as actually located and opened as aforesaid; that when Allen and Burns platted and filed their addition to the city of Liberty, they surveyed and platted said land up to the west side of Lightburne street as previously located and opened as aforesaid; that Lightburne street, as so located and opened, was one of the streets marked on said plat, and that said plat in express terms dedicated all streets and alleys, as shown on said plat, to public use; that lots were sold and improvements erected along both sides of said street, with reference to the liens thereof as so located, opened, and used, prior to said deed from Lightburne to Allen and Burns, and with the knowledge and acquiescence of said Lightburne." Plaintiff by replication denied all new matter in the answer.

The land sued for formerly belonged to Alvan Lightburne, under whom plaintiff claims title. Prior to November 26, 1883, Lightburne owned a tract of land in the city of Liberty, bounded by Water street on the west, and by Lightburne street, originally known as the Liberty and Meeks' Ferry road, or Owens' Ferry road on the east. The street was named Lightburne by the city of Liberty in 1857. Lightburne street ran north and south, between the tract of Lightburne on the west, and a tract owned by Robert H. Miller on the east. The tracts were fenced along and parallel with said street.

The Lightburne tract was platted in two additions to the city of Liberty; the first by Lightburne, and called "Lightburne addition to the city of Liberty," was platted and the plat filed in the recorder's office of said county, November 26, 1883. The addition abuts the west line of Lightburne street, as actually located and opened; it marks Lightburne street the east boundary of the addition, and extends the west line of Lightburne street along the addition and north to the north boundary of his land. Lightburne, by his plat, extends a line entirely around his tract of land, designating Water street on the west, Lightburne street on the east, an alley on the south, and the boundary line of his land on the north. By this plat all streets and alleys in express terms are dedicated to public use.

On December 6, 1883, Lightburne conveyed this whole addition to Thomas F....