Carlin v. Paul

• Decision Date: 31 October 1847
• Parties: CARLIN v. PAUL.
• Court: Missouri Supreme Court

11 Mo. 32

CARLIN

v.PAUL.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

T. POLK, for Plaintiff.

PRIMM & WHITTELSEY, for Defendants.

NAPTON, J.

This was an action on the case for a disturbance of a right of way in an alley in the city of St. Louis. The declaration contained two counts; the one alleging a private right of way in the plaintiff, and the other averring that the alley was a public highway. The case went to trial upon the general issue, and it was agreed that, in case of a recovery, the plaintiff should have only nominal damages--such damages to be considered both special and general.

It appeared that Madame Therese Cerre Chouteau formerly owned the entire block, through which the supposed alley extended, and that shortly before her death, she caused a plat to be made of this block, for the purpose of partitioning it off among her children, upon which plat the alley was laid off. She accordingly executed conveyances of different portions of this block, and in all of the deeds, this alley, which was twenty feet wide, was called for as the boundary of the lots. The alley extended from Walnut street, through the centre of the entire block, until it reached the lot of ground belonging to the estate of the late Samuel Perry. It seems that Auguste Chouteau, the husband of said Therese, had, several years before this petition was made, for the purpose of widening Main street, thrown off from the east side of the block eight and one-fourth feet; but that the plat used by Madame Chouteau in laying off the alley represented the block as it was originally, and the alley was located in the centre of the block, without reference to this diminution on the side of Main street. The deeds were drawn in conformity to the plat, and consequently the deeds conveying the lots on the east half of the block called for eight and one-fourth feet more in depth than the lots actually were, assuming the alley to be twenty feet wide, located as in the plat. The plaintiff was the owner of one of the lots in the west half of the block, and the defendant the owner of a lot on the opposite side of the alley, fronting on Main and Walnut streets. This alley had been, previously to the commencement of this suit, opened and paved at the expense of the proprietors of the lots adjoining it. The defendant had extended his buildings fronting on Walnut street about ten feet across the said alley. Upon these facts, the Circuit Court was of opinion that the plaintiff could not recover. A non-suit was taken, and the cause brought to this court by writ of error.

Upon the facts stated, we entertain no doubt that the plaintiff had a right of way in the alley. The original proprietor of the block having subdivided it into small...