Buschmann v. The City of St. Louis

• Decision Date: 08 May 1894
• Citation: 26 S.W. 687,121 Mo. 523
• Parties: Buschmann et al., Appellants, v. The City of St. Louis et al
• Court: Missouri Supreme Court

26 S.W. 687

121 Mo. 523

Buschmann et al., Appellants, v. The City of St. Louis et al

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Lubke & Muench for appellants.

(1) The trial court erred in refusing the plaintiffs' instruction marked 1, and in giving the instruction of its own motion holding that by the plat of October 18, 1867, the land here sued for was dedicated under the statute of the state. First. The land in question was not included in the subdivision made by the plat. Second. The instrument of dedication, written upon its margin named only the "streets and alleys." Third. The parcel in question is a blank upon the face of the plat, is unnamed, and appears only as an outlying piece, the same as the rolling mills and the reservoir property. Fisher v. Carpenter, 36 Kan 184; Mayor v. Stuyvesant, 17 N.Y. 34; Cook v. Village, etc., 7 Michigan, 115; Robinson v. Coffin, 6 P. 41. (2) There being no statutory dedication, the court also erred in refusing plaintiff's instruction number 5. Defendants admitted that plaintiffs would be entitled to recover, unless defendants could prove a valid dedication by plaintiffs of the ground sued for. The defendants failed in this. A common law dedication operates by way of estoppel. Elliott on Roads and Streets, p. 87. 2 Dillon on Municipal Corporations, p. 625. The intention to dedicate must clearly appear and is rebutted by evidence of acts indicating retention of ownership. Baraclough v. Johnson, 3 Nev. & P. 233; 2 Dillon on Municipal Corporations, sec. 636, and note 4. Acceptance of a common law dedication is essential. Kemper v. Collins, 97 Mo. 644; Moore v. Cape Girardeau, 103 Mo. 470. Recitals in a deed are not sufficient. In matter of Lewis street, 2 Wend. 472; Smith v. Lack, 18 Mich. 56; Wiggins v. McCarty, 49 N.Y. 346. There was no estoppel shown in the case at bar against plaintiffs in favor of these defendants. Noyes v. Ward, 19 Conn. 265. (3) The recitals in the three deeds in evidence are not available to defendants as estoppel in view of the previous ordinance of the city which promised compensation to plaintiffs for this wharf property. See Pennsylvania cases, viz: In the matter of Brooklyn St., 12 Atlantic Reporter (Pa.), 664; In the matter of Wayne Av., 16 Atlantic Reporter (Pa.), 631. (4) The plaintiffs had the right in making these deeds to assume that the city would pay them for this property what the land commissioners' jury would declare it to be worth. That was the promise of the then existing city charter (August, 1864). Secs. 5 to 12 Act of January 16, 1860, Supplementary to Charter of City, Sess. Acts 1859-60, pp. 383, 384; Leslie v. St. Louis, 47 Mo. 474; Anderson v. St. Louis, 47 Mo. 479; Leisse v. Railraod, 2 Mo.App. 105; S. C., 72 Mo. 561. Since the adoptien of the constitution of 1875 defendants have had no right to disturb this land until the compensation for it is actually paid. Sec. 21, art. 2, constitution of Mo. 1875. (5) The trial court also erred in excluding the evidence that plaintiffs always paid general and city taxes levied upon this identical property. This evidence showed an intention not to dedicate and also rebutted the claim of acceptance by the public. Elliott on Roads and Streets, p. 131.

W. C. Marshall and John G. Chandler for respondents.

(1) The plat acknowledged and recorded by plaintiffs October 18, 1867, was a complete statutory dedication of the land in controversy, and vested the title in the city of St. Louis for the use of the public. No acceptance was necessary. City of California v. Howard, 78 Mo. 88; Hanson v. Eastman, 21 Minn. 509; Sanborn v. Chicago, etc. Co., 16 Wis. 19; Yates v. Judd, 18 Wis. 118; Reid v. Board, 93 Mo. 295; Indianapolis v. Kingsbury, 101 Ind. 463; Fulton v. Dover, 6 A. (Del.) 633; Chapin v. Brown, 10 A. (R. I.) 639; Denver v. Clements, 3 Col. 484; Barraclough v. Johnson, 8 Ad. & E. 91; Elizabethtown, etc., Co. v. Combs, 10 Bush. (Ky.) 382; Noyes v. Ward, 19 Conn. 250; McDonald v. Wolff, 40 Mo.App. 303, 309; Gammon v. Freeman, 31 Me. 243; Elliott on Roads and Streets, p. 111. (2) If the plat did not operate in and of itself as a statutory dedication of the wharf east of block 1, then the deeds made by plaintiffs in October, 1867 and 1868, operated as a common law dedication of the wharf 400 feet wide, which plaintiff afterwards could neither revoke nor impair. Heitz v. St. Louis, 110 Mo. 618; Archer v. Salinas City, 93 Cal. 43; Schmitt v. San Francisco, 34 P. 961; Hannibal v. Draper, 15 Mo. 634; Ragan v. McCoy, 29 Mo. 366; Gamble v. City, 12 Mo. 617; Rutherford v. Taylor, 38 Mo. 315; Hincklin v. McClear, 22 P. 1057; Gormley v. Clark, 134 U.S. 338; Scherer v. Jasper, 9 S. Rep. (Ala.) 584; 2 Dillon on Mun. Corp., secs., 503, 640, n. 5; Harrison Co. v. Sial, 5 S. Rep. (Miss.) 622; Grogen v. Hayward, 4 F. (Cal.) 161; Moore v. Little Rock, 42 Ark. 66; In re Wayne Av., 16 A. 631 and note; Eureka v. Grogen, 19 Pac. Rep (Cal.) 485, and note; San Leandro v. Le Breton, 13 P. 405; Elliott on Roads and Streets, 115, 116; Rose v. St. Charles, 49 Mo. 509; Taylor v. City, 14 Mo. 20; Baker v. Vanderberg, 99 Mo. 378; State v. Trask, 27 Am. Dec. (Vt.) 554, Freeman's note, 568. (3) Evidence of payment of taxes by plaintiff was inadmissible to defeat their dedication, however made. St. Louis v. Gorman, 29 Mo. 593; Hannibal v. Draper, 36 Mo. 332; San Leandro v. Le Breton, 13 P. 405, 408; Bigelow on Estoppel, 578; Elliott on Roads and Streets, 131.

OPINION

Gantt, P. J.

This is an action of ejectment by Charles L. and Louis W. Buschmann against the city of St. Louis and the St. Louis, Keokuk & Northwestern Railroad Company, to recover possession of a tract of land of one and eighty-three hundredths acres, lying between the east line of city block 2506 and the Mississippi river as indicated by the accompanying plat:

[SEE ILLUSTRATION IN ORIGINAL]

The defense was a dedication to the public use by the plaintiffs. The cause was tried before Judge Valliant, without a jury. It was admitted that Louis Bissell was the common source of title.

On the tenth of August, 1867, Bissell and wife, by deed duly acknowledged and recorded, conveyed to plaintiffs sixteen and seventy-six hundredths acres, bounded north by Ferry street, east by the Mississippi river, south by property of Chouteau, Harrison and Valle, and west by the center line of Gingrass creek. It was then shown by Bleeck, a surveyor who surveyed the lot sued for a short time prior to the commencement of this suit, in August, 1890, that the land in dispute is a part of the tract plaintiff bought of Bissell. In October, 1867, they caused this tract of land to be surveyed and subdivided by W. H. Cousins, surveyor and civil engineer. On the eighteenth day of October, 1867, they acknowledged this plat and put it upon record. The plat embraces all the lands bought by them of Bissell. Their acknowledgment states: "The above plat represents Buschmann's addition to the city of St. Louis, as laid out and subdivided by the undersigned legal owners, and the streets, and alleys as therein represented are hereby dedicated to public use forever."

This plat contains six blocks laid off in lots; it has seven streets, and the disputed space between block 1 and the river, an east and west alley subdividing lots 2, 3 and 4 throughout, and the west half of block 1, and a north and south alley intersecting block 1. Of all these streets, but three have any names upon them, or any words designating that they are streets; and of these, one, Ferry street, existed before the plat was made, and constituted the north boundary of the property by Bissell's deed. Augusta street (now Penrose), on the south line of the property, and Buschmann street, between blocks 1 and 2, bear names. The other streets, namely, between blocks 2 and 3, 3 and 4, 4 and 5, and 5 and 6 are not otherwise designated on the plat than by blank, uncolored strips, in this agreeing exactly with the space between block 1 and the river. The distance on Ferry street from the east line of block 1, to the east line established by Bissell, is given as three hundred and fifty-five feet, five and one-fourth inches, as are the widths of the various streets between blocks as sixty feet. The city reservoir property north of Ferry street is also designated on the plat. The east line of block 1 of this subdivision (now city block 2506), is identical with the west wharf line as established by city ordinance 5403, passed in 1864. Ordinance 5403, established the wharf as a public highway for wharf purposes from the south side of Biddle street to the northern boundary of the city, defining the western boundary line of the wharf in its entire length, which line "passes a point in the center of Ferry street, which point is distant two thousand, five hundred feet eastwardly from First (Main) street measured along the center line of said Ferry street." It also defines the eastern boundary of the wharf as "distant eastwardly from said western boundary line three hundred feet."

The city by ordinance number 1805, approved February 6, 1847, had ordained that "Front street, as at present defined by ordinance, shall be and the same is hereby declared to be, part and portion of the wharf." With the west boundary line of this wharf so established, plaintiffs made the east boundary of their block number 1 to conform, and left the space vacant between that and the river unnamed, as they did the vacant space between blocks, except only Buschmann street.

On the first day of October, 1867, evidently after this plat was made and in contemplation of its being acknowledged and recorded, plaintiffs, with their wives executed a deed to John G. Redmeier, for lot 1 in block...