City of California v. Burke
| Decision Date | 14 March 1922 |
| Parties | CITY OF CALIFORNIA, Appellant, v. JOHN P. BURKE |
| Court | Missouri Supreme Court |
Appeal from Moniteau Circuit Court. -- Hon. J. G. Slate, Judge.
Affirmed.
J. B Gallagher for appellant.
(1) The plat, acknowledged and filed by John Burke June 18, 1858, was a statutory dedication of the land to the appellant city. Secs. 1, 8, Chap. 158, R. S. 1855; Otterville v Bente, 240 Mo. 295, 296; California v. Howard, 78 Mo. 88; Sec. 9284a, Laws 1921, p. 557; Hardin v Ferguson, 271 Mo. 415; Buschmann v. St. Louis, 121 Mo. 523. (a) A statutory dedication of streets, alleys and commons by a properly executed and recorded plat is irrevocable by either dedicator or his heirs. Hatton v. St. Louis, 264 Mo. 643. (b) After such dedication, neither the dedicators, nor any one claiming under them could change the boundaries of the streets and alleys. Brown v. Carthage, 128 Mo. 17. (c) In construing plats of this character we must give effect to the plain meaning and intent they exhibit by their outlines as well as by their words. Brown v. Carthage, 128 Mo. 23; Buschmann v. St. Louis, 120 Mo. 536; Caruthersville v. Huffman, 262 Mo. 375; Zinn v. Sidler, 268 Mo. 688; Secs. 8473, 8498, R. S. 1919; Sec. 5, p. 365, Laws 1857. (d) Where the filing of maps and plats was insufficient as a statutory dedication, but was followed by sale of lots by the plat and acceptance of most of the streets, there was a common-law dedication in entirety according to plat. Otterville v. Bente, 240 Mo. 291; Twedell v. St. Joseph, 167 Mo.App. 547; Caruthersville v. Huffman, 262 Mo. 367; Hardin v. Cunningham, 226 S.W. 872; Hardin v. Ferguson, 271 Mo. 414. (2) Quasi-public corporations are not estopped by the illegal and void acts of their limited statutory agents in assessing the city's property and accepting the payment of taxes on the same. Sturgeon v. Hampton, 88 Mo. 214; St. Louis v. Gorman, 29 Mo. 599; Hannibal v. Draper, 36 Mo. 337; Wright v. Doniphan, 169 Mo. 613; Folk v. St. Louis, 250 Mo. 140. (3) Respondent claims adverse possession of the land in controversy since the year 1878. This court has definitely held in a long line of decisions that adverse possession must begin prior to August 1, 1866, to be of any aid in claiming land which had been dedicated to public use. Hatton v. St. Louis, 264 Mo. 645; Sec. 1314, R. S. 1919; 13 Cyc. 500; Bobb v. St. Louis, 276 Mo. 68; St. Joseph v. Railroad, 268 Mo. 58; Caruthersville v. Huffman, 262 Mo. 374; Robinson v. Korns, 250 Mo. 671; Brown v. Carthage, 128 Mo. 10.
John L. Burns for respondent.
(1) At the time of the filing of the plat in controversy, June 18, 1858, the law of dedication then in force was that of 1855. Ch. 158, R. S. 1855. (2) The law of dedication of property for public use is governed by the intention of the owner to devote his property to such purpose. 18 C. J. 52; Hardin v. Ferguson, 271 Mo. 410; Bauman v. Boeckeler, 119 Mo. 189; Mo. Inst. v. How, 27 Mo. 211; Kansas City v. Ratekin, 30 Mo.App. 416; 9 Am. & Eng. Ency. of Law, 60. (3) The space left blank in the plat by John Burke did not indicate an intention to dedicate such space to the public, but on the other hand, indicated that he intended to retain the property for his own use. Poole v. Lake Forest, 238 Ill. 305; Princeton v. Templeton, 71 Ill. 68; Coe College v. Cedar Rapids, 95 N.W. 267; Birge v. Centralia, 218 Ill. 503; Fisher v. Carpenter, 36 Kan. 184; McLaughlin v. Stevens, 18 Ohio 94; Hurley v. Rum River Co., 34 Minn. 143; Duluth v. Railway, 49 Minn. 201. (4) Where the city lays claim to a common-law dedication or right by prescription, it is just as imperative for it to make proof of the common-law dedication or user by the public for the prescribed time, as it is to prove dedication by the owner. Baker v. Vanderburg, 99 Mo. 378; Bauman v. Boeckeler, 119 Mo. 189; Brinck v. Collier, 56 Mo. 160; Benton v. St. Louis, 248 Mo. 98; Vossen v. Dautel, 116 Mo. 379; 18 C. J. 72. Where the city lays claim to a street, alley or plat of ground by use of the public, the burden of proof is on the city to establish that user by clear and unequivocal evidence, so that the presumption that the title of the owner was retained by him is overcome. Landis v. Hamilton, 77 Mo. 554; Bauman v. Boeckeler, 119 Mo. 189; Baker v. Squire, 143 Mo. 92; Vossen v. Dautel, 116 Mo. 379; Paving Co. v. McManus, 244 Mo. 184. Where a city relies on an acceptance by user, the acceptance of a part does not establish acceptance of the whole street. Milling Co. v. Freeburg, 217 Ill. 384. (5) The action of the city officers in assessing and collecting taxes on the strip of land in controversy, merely goes to show that the city authorities did not regard the strip as belonging to the city, but indicates that the respondent was the owner and in possession of the strip of ground, and tends to defeat the presumption of dedication. Bauman v. Boeckeler, 119 Mo. 202; St. Louis v. Wetzel, 110 Mo. 260; L.R.A. 1916, p. 1175, note; Hillmer Co. v. Behr, 264 Ill. 568.
The plaintiff brought this suit of ejectment in the Circuit Court of Moniteau County against the defendant, to recover possession of a small tract of land situated in the city of California, hereinafter more particularly described. The cause was tried before the court, without a jury, and the findings of fact and judgment of the court were for the defendant; and in due time and proper form, the plaintiff appealed the cause to this court.
The facts are practically undisputed upon all issues, except as to the use and occupancy of the land in question, which was conflicting, as will later appear in a statement of the substance of the evidence upon that question.
It is conceded in both the pleadings and evidence that California, Missouri, is a city of the fourth class.
The controversy is over the possession of a small tract of land, triangular in shape, located in Burke's Addition to the city of California. On the 18th day of June, 1858, John Burke, father of respondent, made a plat of Burke's Addition to the city of California which he duly acknowledged and had filed and recorded in the Recorder's Office of Moniteau County, under the provisions of Chapter 158, Revised Statutes 1855. This plat was not approved by the common council of said city, and such approval was not required at that time.
By reference to the plat it will be seen that dedicator laid out certain lots for sale which were all numbered and their precise length and width were given. South of these lots and running east and west he laid out a street which he named on the plat as Patrick Street. The width of Patrick Street is given at the west end, but not at the east end. The plat is bounded on the south by the Missouri Pacific Railroad right-of-way and on the east by Owens Street. The disputed land lies at the southeast corner of Burke's Addition, between the right-of-way of the railroad and Patrick Street, and is bounded on the east by Owens Street. It is about one hundred and fifty feet in length, and about forty-five feet in width at the east end and fifteen feet at the west end. The plat shows a little triangular tract of land separated from Patrick Street only by a dotted line and bounded on the south by the right-of-way of the railroad and on the east by Owens Street. On the plat it is neither numbered as a lot for sale, nor is its precise length or width given.
The plat mentioned is as follows:
[SEE PLAT IN ORIGINAL]
The appellant tried the case on the theory that the disputed tract of land was dedicated to the city as a part of Patrick Street or commons by the plat of John Burke, as the same was not numbered as a lot for sale nor its precise length or width given, and that the dotted line was intended by the dedicator to indicate that Patrick Street was that much wider at the east end than at the west end, as the width of Patrick Street was not given at the east end.
Plaintiff's evidence tended to show that this tract of land had been used in connection with and as a part of Patrick Street since the filing of the plat of Burke's Addition, and had never been enclosed or in any way separated from Patrick Street until a few weeks just prior to the institution of this case, when it was enclosed by a fence by the respondent, which prompted the institution of this suit by the city of California.
The evidence further showed that Patrick Street had been in use as a continuation of other streets of said city for many years, and that the sewer system of the city had been extended along it, and also that the lots in said Burke's Addition had been sold according to the plat.
Defendant's evidence tended to show: That at the trial it was stipulated and agreed between counsel for plaintiff and counsel for defendant, that John Burke was the common source of title. That is, that the city of California claimed its title to the real estate in controversy through John Burke by reason of Burke's Addition to the city of California, made, executed and recorded as before stated, while John P. Burke, respondent herein, claimed title to the real estate by reason of the laws of descent and distribution of this State, he being the only heir and his father having died intestate. That the triangular strip of land lies immediately north of the right of way of the Missouri Pacific Railroad, and as claimed by respondent, south of Patrick Street, which street extends the full length of the strip of ground, along the north side of said strip.
It will be noted from the plat as shown in appellant's abstract of the record that Patrick Street extends all along the southern side of lots platted in Burke's Addition, and this street is designated on the plat at its west end as being forty feet wide, while at the...
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