City of Hardin v. Ferguson
| Citation | 196 S.W. 746,271 Mo. 410 |
| Parties | CITY OF HARDIN v. LAFAYETTE FERGUSON et al., Appellants |
| Decision Date | 02 July 1917 |
| Court | United States State Supreme Court of Missouri |
Appeal from Ray Circuit Court. -- Hon. F. P. Divelbiss, Judge.
Affirmed.
George W. Crawley and J. L. Farris, Jr., & Sons for appellants.
(1) The city, not having been organized at the time the plat was filed, and there being nothing indicative on the plat of the purpose for which it was left, it was error for the court to treat such land as having been dedicated. The persons reserving the land could do with that as they saw fit. (2) The city did not acquire the strip of ground south of its roadway running east and west in front of blocks 12 and 13 and north of the railroad right of way, by adverse possession. It has never been fenced, except a portion of that south of block 13, which was fenced by others, nor has it ever had the open, notorious, adverse and peaceable possession of any parts of this strip of ground as against the world, excepting the two streets crossing the railroad and the one street sixty feet in width south of said block where the city has kept its public road, and worked the same. The evidence shows that other parties have, at times, and continuously been in possession of parts of all this strip before the organization of the city and after the filing of the plat, as well as ever since. Therefore, the court was in error in sustaining the claim of the city. (3) Ferguson acquired a portion of his lands through the deed of McGinnis and the court should have ascertained and determined the same. (4) The deed from the heirs of James Hughes to Cunningham conveys title to what interest James Hughes may have had, and the court erred in holding said deed void and of no effect. The court further erred, and we make the point that by the presentation of the plat signed and acknowledged by James Hughes, to the city council, and its approval, and by the recording of said plat in the office of the recorder of deeds, 1888, and permitting it to rest for all this time in holding that said city was not estopped and precluded to assert claim against the very lands included in the plat. There was nothing on this plat to show the purpose of Hughes to dedicate it to the city for any purpose, but to the contrary it shows upon its face the purpose to set aside each lot as his individual property. Because of this the city is estopped now to set up claim.
Garner, Clark & Garner for respondent.
(1) The plat of the original town, coupled with the acts of user, control and supervision on the part of the respondent city, shows an intention on the part of the owners to dedicate and of the city to accept, for public uses, the land in controversy. California v. Howard, 78 Mo. 88; Buschmann v. St. Louis, 121 Mo. 523; Heitz v. St. Louis, 110 Mo. 618; McGrath v. Nevada, 188 Mo. 102; Naylor v. Harrisonville, 207 Mo. 341; Rose v. St. Charles, 49 Mo. 509; Connor v. Nevada, 188 Mo. 148; Price v. Breckenridge, 92 Mo. 378; Kimball v. Chicago, 253 Ill. 105; Arnold v. Weiker, 55 Kan. 110; Oregon City v. Oregon C. & R. Co., 44 Ore. 165; Kimball v. Chicago, 97 N.E. 257. (2) It is immaterial whether or not the town was incorporated at the date the plat was filed. School District v. Pointer, 102 Mo. 464. (3) Action of the board of aldermen can only be shown by the minutes and the action of the aldermen individually or in a private capacity cannot bind the city. Stewart v. Clinton, 79 Mo. 603; Viernow v. Carthage, 139 Mo.App. 276. (4) It was not necessary for respondent to show a perfect title against the world, but only a better title than appellants. Charles v. White, 214 Mo. 187; Dixon v. Hunter, 204 Mo. 382; Gage v. Cantwell, 191 Mo. 698; Graton v. Land Co., 189 Mo. 322; Harrison Co. v. Bowers, 200 Mo. 219; Toler v. Edwards, 249 Mo. 152. (5) The city is not estopped as against appellant by any negotiations he may have had with members of the board of aldermen acting in a private capacity, which is the only estoppel pleaded. See cases cited under point three; also Moses v. Dock Co., 84 Mo. 242; Webb v. Demopolis, 95 Ala. 13; Grooms v. Morrison, 249 Mo. 544; Dilbert v. D'Arcy, 248 Mo. 617.
I. Plaintiff, the city of Hardin, sets up title to a certain strip of land about one hundred and fifty feet wide, lying between the Wabash Railroad tracks and lots 8, 9, 10, 11, 12 and 13 of the original town of Hardin.
Various persons were joined as parties defendant, but on disclaiming any interest the suit was dismissed as to all but Lafayette Ferguson and J. W. Cunningham, who claim title and possession to that part of the strip lying south of lots 12 and 13.
The evidence shows that the title emanated through original grant from the United States and that all deeds introduced, both by the city and by the two defendants, run from a common source of title; that in 1869 the strip of land in controversy was dedicated to the town of Hardin by the then owners, Messrs. Shaw, Hughes, Spurlock, McGinnis and Porter; that in 1888 James Hughes (one of the signers of the dedication) platted and recorded an addition to the town of Hardin, block one of which appears to include the portion of the disputed strip lying south of Block 13 of the original town; that until the year 1912 there was no apparent dispute as to the ownership by the city of this entire strip of land; that for thirty years it had been used for public purposes; that the city had erected thereon the town jail; also public hitch racks; that trees had been planted on the western end and the open space had been used as a sort of city park, while from time to time various "shows" or circuses had been allowed to erect their tents there; that in the early years there was also a town well there, but that this had fallen into disuse.
There was also testimony to show that the city had run tiling through the greater length of the strip in order to drain it and make it usable; also that a street sixty feet wide had been run the entire length of the strip and at several points streets had been cut through which ran south over and across the tracks of the Wabash Railroad Company; that in the year 1912 the defendant Cunningham, in looking for land near the railroad tracks to be used for unloading purposes, approached the then mayor, Mr. Brunnsworth, to ascertain if he could use the portion now in dispute (i. e. that lying south of lots 12 and 13) and was told the matter would be taken up and investigated. Later the mayor reported that the city held no title to this land and Cunningham then procured quitclaim deeds from the heirs of James Hughes and also Thomas McGinnis (both signers of the dedication).
The evidence also tends to show that he only paid a small price for the land; that later Cunningham leased a part of the land he had thus procured to John Shelton, who erected a barn thereon, which afterwards burned and never was rebuilt.
In 1914 the city instituted this suit to quiet its title to the entire strip. A jury being waived the court rendered judgment in favor of plaintiff and defendants appealed.
II. The questions presented by this appeal are whether the respondent city acquired the property in...
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