City of Hardin v. Cunningham

• Decision Date: 15 December 1920
• Docket Number: No. 21401.,21401.
• Citation: 285 Mo. 457,226 S.W. 872
• Parties: CITY OF HARDIN v. CUNNINGHAM et al.
• Court: Missouri Supreme Court

226 S.W. 872

285 Mo. 457

CITY OF HARDIN v. CUNNINGHAM et al.

No. 21401.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Appeal from Circuit Court, Ray County; Arch B. Davis, Special Judge.

Suit by the City of Hardin against James W. Cunningham, in which the Wabash Railway Company was joined as a defendant. Judgment for plaintiff, and the Wabash Railway Company appeals. Affirmed.

The plaintiff, the city of Hardin, brought this suit against the defendant Cunningham, claiming that it was entitled to the possession of a certain strip of land described as follows:

"* * * Lying between the right of way of the Wabash Railroad and block thirteen (13) of the original town of said city of Hardin and more particularly described as follows: Beginning at the northeast corner of lot nine (9) in block one (1) of Hughes addition to said city of Hardin, thence in a northeasterly direction parallel with the north line of a street called Main street in said city to the west line of First street in said city, thence south along the west line of First street to the north line of the Wabash Railroad, thence in a southwesterly direction along the north line of said right of way to the southeast corner of said lot nine (9), thence along the east line of said lot to the place of beginning, said strip of ground being three hundred (300) feet long, east and west, and ninety (90) feet wide, north and south. * * *" Thereafter the Wabash Railway Company (hereinafter called the Wabash) was made a defendant, apparently because it claimed to be the owner of the lands in controversy and other lands similarly situated in Hardin, and filed an answer, as did the defendant Cunningham. Upon a hearing before the court, a jury having been waived, judgment was rendered in favor of the plaintiff, and the Wabash has appealed.

The petition merely asserts that the plaintiff is entitled to possession of the lands described, that defendant unlawfully ousted it, and claims damages and "other and proper The answer of Cunningham is a general denial. The answer of the Wabash a general denial; a claim of title in itself; an assertion that plaintiff claims title under dedication which is alleged to be void for indefiniteness; that the signers of the plat of the town of Hardin "offered" said lands to the North Missouri Railroad Company for a named consideration, namely, the construction of a railroad through said lands, which offer this defendant alleges "was accepted," and the railroad was duly built; that the Wabash is the successor in title to the North Missouri Railroad Company; a plea of various statutes of limitations and a plea of estoppel. A general denial was filed in reply.

The plaintiff had brought certain other suits of a similar nature against various persons, and the Wabash had brought a suit to quiet title to all of the lands involved in all these suits, asserting title in itself to all of the said lands, and, for convenience, this suit resolved itself into a sort of omnibus proceeding having for its object the settlement of the conflicting claims of the parties to a tract of land about 90 feet in width, lying immediately north of the north line of the Wabash right of way, extending entirely across blocks 8, 9, 10, 11, 12, and 13 of the original town plat, and bounded on the north by the south line of said blocks. Evidence was introduced touching any and all of the tract last above described.

James Happy, who was the owner on April 29, 1853, is admitted to be the common source of title. By mesne conveyances Happy's title eased to Shaw, Spurlock, McGinniss, and Porter, who were the owners on January 2, 1868, when the lands in question and other lands were platted by them as a part of the town Hardin.

The north 60 feet of this strip above described, has been improved by respondent as a street, and apparently is not in dispute. That much is apparently conceded to the plaintiff.

The evidence tended to show that for 30 years or more this strip of land had lain uninclosed, and had been used as a town common; that the city had built a jail upon it, had authorized the erection of a band stand thereon; had laid tiling, planted trees, mowed weeds, and otherwise exercised control, supervision, and management over it. The general public had traveled freely upon it, and upon all parts of it, and up until about 1912 no controversy had arisen concerning the city's right to possession of the entire tract.

Between the south margin of this tract and the rails of the Wabash main track was a strip of ground approximately 50 feet wide, which by common consent was regarded as the north half of the Wabash right of way. For a great many years various buildings such as grain elevators, stock pens, and other structures had been erected and maintained in close proximity to the railroad tracks under leases or permits issued by the Wabash, for which it charged a nominal rental, usually $5 per annum. Appellant built and for many years maintained stock pens which extended into the land in...