City of Laddonia v. Day

• Decision Date: 01 June 1915
• Docket Number: No. 17294.,17294.
• Citation: 178 S.W. 741,265 Mo. 383
• Parties: CITY OF LADDONIA v. DAY.
• Court: Missouri Supreme Court

178 S.W. 741

265 Mo. 383

CITY OF LADDONIA v. DAY.

No. 17294.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by the City of Laddonia against Cheever Day. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

This is an action of ejectment brought by the city of Laddonia against the defendant, for the possession of a certain strip of land, alleged to be a part of Western avenue, a public street in Smith's addition to said city, which will later be more particularly described. The judgment was for the defend; ant, and the plaintiff appealed the case to the St. Louis Court of Appeals, and upon motion the case was transferred to this court, because it involved the title to real estate within the meaning of the Constitution.

The following is a copy of description of said Smith's addition, formal parts omitted: "Description of Joseph P. Smith's addition to Laddonia, Missouri.

"Begin at the quarter section corner on the east side of section thirty-five, township fifty-two, range seven and run west thirty feet. Run thence south parallel to the section line one hundred and five feet for a point of beginning, thence south 88° 20' west 556 feet to the northwest corner of block 3; thence south parallel to the section line 850½ feet to the north line of the C. & A. R. R.; run thence northeasterly as shown in the accompanying plat to the southeast corner of block two (2); run thence north 473½ feet to the point of beginning.

"The accompanying plat which is a part of this description fully and truly shows the size and location of all lots, blocks, streets and alleys and is a true copy of said addition as laid off by me Dec. 1st, 1883. C. D. Rodgers,

                   "Surveyor of Audrain County, Missouri
                

"All the streets and alleys in the foregoing plat of Smith's addition to Laddonia, I hereby convey to the county of Audrain, state of Missouri, for public use as streets and alleys as long as they shall be so used. But should such streets and alleys cease to be used for such purposes the title and ownership to revert back to me and my heirs.

                   "Witness my hand and seal this 16th day of
                  June, 1884.          J.P. Smith. [Seal.]"
                   Properly acknowledged and recorded
                

And the following is a copy of the plat filed:

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

The land in suit is described as follows:

"Begin at a point 42 feet and 4 inches west of the northwest corner of lot 8, block 4, of Smith's addition to the city of Laddonia, in Audrain county, Missouri, and run thence east 42 feet and 4 inches to the northwest corner of said lot 8, then run south to the southwest corner of lot 5 of said block 4 of said Smith's addition, then run west 41 feet and 3 inches, thence run north to the point of beginning."

It is practically conceded that one J. P. Smith owned the land in controversy, together with other adjoining lands, and that on the 16th day of June, 1884, he laid out and platted Smith's addition to the city of Laddonia and dedicated the streets and alleys described therein to the city, one of which, as previously stated, was Western avenue; and the defendant purchased all of block 4 in said addition from Verdia Bowman, as stated in the deed, "according to the recorded plat thereof." The land in suit lies immediately west of and adjoining defendant's said block 4, and he claims it as a part of his block, and the city claims it as a part of said Western avenue.

Upon this state of facts this case must be disposed of.

Fry & Rodgers, of Mexico, for appellant.

WOODSON, Z. (after stating the facts as above).

I. I have set forth he description of Smith's addition to the city of Laddonia, and the plat accompanying it, hæe verba as appears from the record filed in this court.

By drawing a plat of section 35, township 52, range 7, of Audrain county, Mo., which I have here done, viz.:

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

—and then attempt to locate the plat of the addition thereon, it will be discovered at a glance that it is an impossibility, for the reason that no definite starting point is given in the description of the addition, nor does the plat accompanying it lend any assistance thereto.

The description is:

"Begin at the quarter section corner on the east side of section thirty-five, township fifty-two, range seven," etc.

To what quarter section corner does that language refer, the northeast corner of the northeast quarter, the southeast corner of the same quarter, or the southeast corner of the southeast quarter of said section? No one, be he man, surveyor, or the judge of a court, can answer that question, because it may refer to any one of the three corners mentioned.

With that omission in the description of the addition, we have nothing before us except the plat proper to indicate the land in controversy; and that plat definitely locates the avenue in question, as well as the property of the defendant's block 4, and, according to that plat, clearly the strip of land in question belongs to the city, for the reason that section 6573, R. S. 1879, now section 10294, R. S. 1909, the statute under which the addition was laid out and platted and the streets and alleys were dedicated to public use, required all such additions and plats to be laid out and platted, showing the lots, blocks, streets, and alleys, etc., and to be acknowledged and recorded as deeds conveying real estate are required to be acknowledged, and recorded, and that when such additions are so laid out, platted, acknowledged, and recorded, the title to the streets and alleys described therein shall by those acts become the property of the city in fee, to be held by it in trust for the public.

This statute has been before this court for consideration so frequently that it would be hard for me to add anything new to the observations of the learned judges who wrote the opinions therein, and for that reason it will suffice to quote briefly from one or two of those cases and cite a few more.

In the case of Brown v. City of Carthage, 128 Mo. 10, loc. cit. 17, 30 S. W. 312, 313, the court used this language:

"II. We do not think that the reservation, in the plat, of the `trees and rocks' on the surface of the streets and alleys, impairs the force and effect of the plat as an absolute statutory dedication for the purpose contemplated by the statute, and in this state, as in many others, a valid statutory dedication operates to vest the fee and dispenses with the necessity of an acceptance on the part of the public. Gen. St. 1865, c. 44, § 8; R. S. 1889, § 7313; Elliott on Roads and Streets, 87; Buschmann v. St. Louis, 121 Mo. 523 ; California v. Howard, 78 Mo. 88; Reid v. Board of Education, 73 Mo. 295. After such a dedication, neither the dedicators, nor any one claiming under them, could change the boundaries of the streets and alleys."

And in the case of Railroad v. Baker, 183 Mo. 312, loc. cit. 322, 82 S. W. 85, 87, the court said:

"The execution and recording of the plat of the town of Osborn in 1858 was a dedication of the parallelogram thereon marked, `Reserved for Depot Grounds,' to the Hannibal & St. Joseph Railroad Company for railroad purposes. The use of the land for depot grounds is an appropriation of the land to a public use, within the meaning of the Constitution and the statute. Section 14, art. 12, Const.; section 4270, R. S. 1899; Thompson v. Railroad, 110 Mo. loc. cit. 160 ; Railroad v. Totnian, 149 Mo. 657 ; Railroad v. Smith, 170 Mo. 327 ; Railroad v. Mining Co., 161 Mo. loc. cit. 309 [61 S. W. 684, 51 L. R. A. 936, 84 Am. St. Rep. 717]. The designation of the parallelogram on the plat of the town as `Reserved for Depot Grounds' constituted a dedication of the property to that public use, and was expressly authorized by section 8 of chapter 158, Revised Statutes 1855. Rutherford v. Taylor, 38 Mo. 315; Price v. Breckenridge, 92 Mo. 378 ; s. c., 77 Mo. 447; Hannibal v. Draper, 36 Mo. 332; Reid v. Board of Education, 73 Mo. 295; Heitz v. St. Louis, 110 Mo. 618 . And the sale of lots by reference to such a plat constitutes it a good dedication, even if there had been an incomplete dedication by plat. Buschmann v. St. Louis, 121 Mo. 523 ; Field v. Mark, 125 Mo. loc. cit. 515 ; Brown v. Carthage, 128 Mo. loc. cit. 17 ; Meiners v. St. Louis, 130 Mo. loc. cit. 284 ; Milling Co. v. Riley, 133 Mo. loc. cit. 584 ; Downend v. Kansas City, 156 Mo. 68 [56 S. W. 902, 51 L. R. A. 170]; Railroad v. Gordon, 157 Mo. 81 ; Longworth v. Sedevic, 165 Mo. 221 . There is no doubt as to the right of a railroad to accept such a dedication. The act creating it gave it the right to so do, and the law gives it such a right because it is for a public use. Railroad v. Railroad, 108 Mo. 298 ; Railroad v. Mining Co., 161 Mo. loc. cit. 309 [61 S. W. 684, 51 L. R. A. 936, 84 Am. St. Rep. 717]."

There are many other cases to the same effect, among them are the following: Naylor v. Harrisonville, 207 Mo. 341, 105 S. W. 1074; Buschmann v. City of St. Louis, 121 Mo. 523, loc. cit. 535, 26 S. W. 687; City of Hannibal v. Draper, 15 Mo. 634; Price v. City of Breckenridge, 77 Mo. 447; Hatton v. City of St. Louis, 175 S. W. 888, by Bond, J., not yet officially reported. "

Under that statute and the authorities mentioned, there can be no doubt in my mind but what the fee to the property in controversy belongs to the plaintiff for the use of the public, and it is entitled to a recovery in this case without that right is destroyed by the defense interposed by the defendant. Moreover, in my opinion, that statute is both wise and just.

This court in effect has held, in numerous cases of this character, that to ignore that statute where additions have been made to cities and laid out into lots, blocks, streets, and alleys, and especially after the lots had been improved by the owners and the streets used by them...