Callaway Cnty. v. Nolley

• Citation: 31 Mo. 393
• Parties: CALLAWAY COUNTY, Plaintiff in Error, v. NOLLEY et al., Defendants in Error.
• Decision Date: 31 January 1861
• Court: United States State Supreme Court of Missouri

31 Mo. 393

CALLAWAY COUNTY, Plaintiff in Error,

v.NOLLEY et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1861.

1. On the 29th August, 1835, H. dedicated to public use the lot in controversy by filing a plat in the office of clerk of the circuit court of Callaway county, on which plat this lot was marked “Market Square,” under the statute, (R. C. 1825, p. 762.) On the 26th November, 1844, H. and his wife deeded the lot in controversy to the defendants. Held, that the statute of limitations against municipal corporations, and other authorities established to manage the affairs of the state, as against individuals; and that the right of the public in property dedicated to public use may be lost by an adverse possession for ten years.

2. When ten years have elapsed from the taking effect of our statute of limitations, all real actions are barred, although they first accrued under some other act of limitations, which gave a longer period.

Error to Callaway Circuit Court.

The lot in controversy was a part of Hockaday's addition to the town of Fulton, in Callaway county. On the 29th August, 1835, said Hockaday filed in the office of the clerk of the circuit court of Callaway county a plat of said addition, on which this lot, square No. 203, is marked “Market square.” On the 26th November, 1844, said Hockaday and his wife deeded the said lot to the defendants as trustees of the Presbyterian church. On the 23d September, 1859, this writ was brought by Callaway county to the use of the inhabitants of Fulton, against the defendants as trustees.

Ansell, Hardin & Gardenhire, for plaintiff in error.

I. The first instruction asked by plaintiff should have been given, because, whether the said market square was by the

said plat expressed, named or intended for public use, was a question of fact for the court sitting as a jury to determine. There was undoubtedly evidence on the plat itself that it was intended for public use, and if so, then it was a conclusion of law that said Hockaday could not, after the plat was deposited in the recorder's office, resume control over said square, or sell or donate the same. (Town Plats, Stat. Mo. 1835, p. 599; The City of Hannibal v. Draper, 15 Mo. 640; Trustees of Watertown v. Cowen, 4 Paige, 513; City of Cincinnati v. White, 6 Peters, 431, 437; Barclay and others v. Howell's Lessee, 6 Peters, 498, 504; 3 Kent, 450, 451; New Orleans v. The United States, 10 Peters, 662, 712, 731, 734, 736.)

II. The plaintiffs contend that the statute of limitations does not apply to or bar a public trust, or a dedication of highways, streets, squares, &c., to public use; that if the statute of limitations applies at all, then it must be the statute in force at the time of the defendants' entry into said lot; that to entitle defendants to insist on the statute of limitations then in force, their possession must have been notorious, uninterrupted and under an adverse claim of title for a period of twenty years as required by the statute then in force.

III. There can be no adverse possession set up by defendants in this cause. If Irvine O. Hockaday dedicated said lot of ground to public use, then he could not resume the possession and control of said lot either for the neglect to occupy said lot by the parties to whom dedicated, however long they might neglect to improve or fail to occupy said lot for the purposes of its dedication; but if the said Hockaday had resumed the control or occupancy of said lot, he would have held the same as a trustee for the public use and could not have set up adverse possession against plaintiff.

IV. Defendants purchased for a nominal consideration, and held under a quitclaim deed said lot from I. O. Hockaday. Daniel Nolley, one of the defendants, took the acknowledgment of said Hockaday to said plat before the filing of the same--the plat was filed as required by law and was notice to all persons--the deed of said Hockaday to Nolley and others states that said square “was originally intended to be donated to the town of Fulton for the purposes of a market, but there being so little public spirit in the town of Fulton that it is now believed there will not be shortly a market erected upon said square, therefore the original design is abandoned and the said lot of ground is now donated and appropriated to said church for the purpose of erecting thereon a house of public worship;” therefore the said defendants hold under no other or better title than said Hockaday would have held had he resumed possession. Therefore plaintiff says that there is no legal medicine that can cure their defective title, and no balm in Gilead that can purge to a pure and pristine health the foul inception of their pernicious claim.

H. C. Hayden, for defendants in error.

I. The court committed no error against plaintiff in the introduction of testimony showing that Hockaday had remained in possession of the ground in controversy, had paid taxes assessed by the town and county; that the trustees of the town had caused the sidewalk and curbs to be erected on the street used by the town running through said property. The evidence in regard to taxes was competent and relevant to show adverse claim by Hockaday down to the year 1844; that in regard to the street and building of the curbs with the evidence of the taxation by the town, altogether running through a space of twenty-four years, was relevant and competent to show the contemporaneous construction of the plat by the acts of the parties, Hockaday and the town, that the property was regarded as the property of Hockaday. The non-user by the town showing either that there had been no acceptance of the alleged donation or that it had been subsequently abandoned; that it had never been used for the purposes for which it was claimed to have been donated. The town must have accepted the donation. (3 Kent's Com., side page, 451, top page, 566, note a, note 2; Law Reporter, March, 1849, p. 505; Willoughby v. Inks, 20 Wend. 96; 2 Greenl. Ev. § 662, 664; 2 Doug., Mich., Rep. 283-287; 16 Barb. 251; 14 ib. 511; 1 Rhode Island, 511; 8 Grattan, 632; 6 Verm. 367, 355; 11 Penn. 444; 2 Hilliard on Real Property, 73; 2 Selden, 257; 5 Strob. 217; 40 Maine, 154; 8 B. Monroe, 232; 25 Maine, 554; 23 Vermont, 92.)

II. The statute of limitations is a complete bar to this action. (County of St. Charles v. Powell, 22 Mo. 525; 18 Mo. 220; 26 Mo. 453; 19 Mo. 602; 8 B. Monr. 259.)

SCOTT, Judge, delivered the opinion of the court.

This cause in the court below was made to turn on the statute of limitations. It was maintained for the plaintiff that inasmuch as the dedication made by ...