City of Columbia v. Bright

• Decision Date: 10 February 1904
• Citation: 179 Mo. 441,79 S.W. 151
• Parties: CITY OF COLUMBIA v. BRIGHT.
• Court: Missouri Supreme Court

79 S.W. 151

179 Mo. 441

CITY OF COLUMBIA v. BRIGHT.

Supreme Court of Missouri. Division No. 1.

February 10, 1904.

TOWN PLATS—DESCRIPTION—DEFINITENESS— STREETS—FAILURE TO IMPROVE—ESTOPPEL— ADVERSE POSSESSION—STATUTES—INSTRUCTIONS.

1. Where a plat of a town stated that it was located on the southeast quarter of section No. 12, in range 13, township 48 north, in Boone county, and on that part of said quarter section on which a particular house then stood, by means of which, as a starting point, a line was established for the west line of a certain street, from which line as a base could be run, measured, and located on the ground the true lines of every street, alley, and lot laid down on the plat, the plat was not defective for uncertainty of description, in that by its terms or reference it did not locate itself on the earth's surface.

2. Where, in an action to recover a strip of land alleged to constitute a part of a street, defendant claimed title only by adverse possession, an instruction that if the city, when improving the street, left defendant's house and retaining wall standing on the strip in question, and thereafter limited and conformed the improvement of the street to such retaining wall for more than 36 years before suit was brought, the city was estopped from recovering it, was erroneous, since the city had a right to improve or leave unimproved any part of the street, at its election.

3. Where, in an action to recover a strip of land alleged to be a part of a street, defendant claimed title thereto by adverse possession, an instruction authorizing the jury to consider facts tending to show adverse possession which arose after the enactment of the statute of 1865 (Gen. St. 1865, c. 191, § 7), providing that thereafter no person shall acquire title to any part of a

public street by adverse possession, was erroneous.

Appeal from Circuit Court, Boone County; Jno. A. Hockaday, Judge.

Action by the city of Columbia against W. A. Bright as executor, etc. From a judgment in favor of defendant, plaintiff appeals. Reversed.

The following is a copy of the plat referred to in the opinion:

W.H. Rothwell, Webster Gordon, and N. T. Gentry, for appellant. Gillespy & Conley and E.W. Hinton, for respondent.

BRACE, P.J.

This is an action in ejectment to recover the possession of a strip of ground 2.3 feet wide and 80 feet long, of which the defendant is in possession, and which the plaintiff claims is within the lines of Ninth street in said city. The petition is

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

in common form, the answer a general denial. The defendant is the owner of lot No. 220, on the northeast corner of Broadway and Ninth streets, in said city, and the controversy is as to the proper location of the east line of Ninth street, which is the west boundary of said lot. At the close of plaintiff's evidence the defendant demurred thereto, the demurrer was overruled, and defendant excepted, and at the close of all the evidence renewed his demurrer, which was again overruled, and again excepted to. The case was submitted to the jury on instructions, and verdict returned for the defendant, from the judgment on which the plaintiff appeals.

On the trial the plaintiff introduced evidence of surveys by which it appeared that the strip in question is within the lines of said Ninth street. In addition to the instructions in the nature of a demurrer to the evidence which was refused and the instructions given at his request the defendant also asked the following instruction: "The court instructs the jury that if they believe from the evidence that Peter Wright made the original survey of the town or city of Columbia, and that said survey has been lost or destroyed, and the beginning or initial point of said survey, and no other point established or located from said initial point, can be found, and that said Wright's said survey was made without any reference to any government survey by which an initial point could be established, then the surveys made and read in evidence by plaintiff are inaccurate, and are not correct surveys of said town or city, and the verdict must be for the defendant," which the court refused, and to its refusal defendant excepted; and defendant now contends that, regardless of the merits on the issues submitted to the jury, the judgment of the circuit court must be affirmed, because the plaintiff failed to show any title to the premises, in this: that the dedication and plat under which plaintiff claims "could not pass title to the streets because it furnished no description by which they could be located."

1. The substance of defendant's contention is thus tersely stated in the brief of counsel: "A plat, of course, which is relied on as showing a dedication of streets and alleys, must, so far as certainty of description is concerned, stand on precisely the same footing as a deed. It must, in terms or by reference, locate itself on the face of the earth; otherwise it is a mere checkerboard picture. The plat in question is exactly in this situation. It gives the dimensions of streets, blocks, and lots on paper, but it neither locates them on the ground, nor furnishes any means of locating them. It does not tie onto anything." This contention cannot be maintained. It loses sight of the following facts: That in the certificate of dedication by the commissioners of Boone county, under which both parties claim, it is certified that "they have selected the southeast quarter of section number twelve, in range thirteen, township forty-eight north, and thereupon have laid out a town which is called `Columbia'; and the annexed plat is the form and plan which said lots were laid out and numbered, as well as the form, size, and courses of the streets, alleys, and public grounds, which, by reference to the map, and the names, numbers, etc., will more fully appear, and by reference to the colors will show the grounds belonging to the county for the use of public buildings, etc., as above mentioned on said plat; and we do hereby certify that the aforesaid and annexed map is a correct and true plan of said town and county seat of said county of Boone." That on said plat the streets are shown to run north and south and east and west, crossing each other at right angles, and the lines thereof indicate their relative dimensions. That one of these streets running north and south is Fifth street, and two of the streets running east and west, and crossing Fifth street at right angles, are Broadway and Locust streets. That the south line of Broadway and the west line of Fifth streets are the north and east lines of lot No. 178, the northeast corner of which lot is marked "G" on the plat. That the south line of Locust street and the west line of Fifth street are the north and east lines of lot No. 52, the northeast corner of which lot is marked "H" on the plat, and the line running north and south between the two points is the west line of Fifth street. That in the northeast corner of lot 52 is another mark, "X," and at the bottom of said plat is the following footnote: "A Plat of the town of Columbia. X Hannah Hardin House...