City of Pacific v. Ryan

• Decision Date: 03 June 1930
• Docket Number: No. 28193.,28193.
• Citation: 28 S.W.2d 652
• Parties: CITY OF PACIFIC, Appellant, v. WILLIAM RYAN.
• Court: Missouri Supreme Court

28 S.W.2d 652

CITY OF PACIFIC, Appellant, v. WILLIAM RYAN.

No. 28193.

Supreme Court of Missouri, Division One.

June 3, 1930.

Appeal from Franklin Circuit Court. — Hon. R.A. Breuer, Judge.

REVERSED AND REMANDED.

James Booth and Virginia J. Booth for appellant.

(1) For the purpose of obtaining title by adverse possession the defendant cannot tack his possession onto that of persons with whom he is not in privity. 2 C.J. 83; Adkins v. Tomlinson, 121 Mo. 487. (2) Both plaintiff and defendant taking under the same plat are absolutely bound by that plat. Laddonia v. Day, 265 Mo. 283. (3) The defendant having pleaded title by adverse possession, and failed to prove that allegation, as here, the burden being on him, his defense must fail. Fiorella v. Jones, 259 S.W. 782. (4) It was necessary, in order for the defendant to invoke the doctrine of estoppel, to have proved that he relied on his adversary's action in altering his position, or doing the thing charged to be wrong. If the truth was known to both sides, neither can invoke an estoppel against the other. St. Louis Safe Deposit Bank v. Kennet Est., 101 Mo. App. 399; Bartlett v. Roberts, 66 Mo. App. 125; Amy v. Ramsay, 4 Mo. 505; Thompson v. Reno, 12 Mo. 157; Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63; Noble v. Blount, 77 Mo. 235. (5) No one testified to the elements of the estoppel pleaded by defendant and the burden was on him to prove such elements. Defendant himself did not testify. 21 C.J. 1250. (6) The city could not deed or convey its streets and alleys and under such circumstances could not be estopped. Brown v. Miller, 46 Mo. App. 1; Bartlett v. Roberts, 66 Mo. App. 135; Columbia v. Bright, 179 Mo. 441. (7) The statute of limitations as to streets and alleys does not run against the city. Sec. 1314, R.S. 1919. (8) Since said section 1314 went into effect, on August 1, 1866, no person can acquire title by adverse possession to the streets and alleys of a city. Columbia v. Bright, supra. (9) The defendant having submitted his case in the lower court on the theory that he admitted possession of that part of the alley sued for, and had obtained title thereto by limitation or under the doctrine of estoppel, he is bound by that theory and the cause must be ruled here on the same theory. 3 C.J. 718. (10) The defendant could not obtain title by abandonment of the city (and there was no evidence to prove such abandonment), but the burden was on him to prove that the title had ripened in him by adverse possession. 1 C.J. 10.

W.J. Cole and T.P. Hukriede for respondent.

(1) The defendant, claiming title to the property in question by virtue of a deed, is in privity with the persons under whom he claims, so as to have a basis for a claim by adverse possession. 2 C.J. 85. (2) The plaintiff has, by its attitude, allowed the defendant to take such a position that he will be greatly injured if the plaintiff is now allowed to change its attitude, and, therefore, the plaintiff is estopped from changing the attitude formerly maintained. 10 R.C.L. 712; State ex rel. Moss v. Hamilton, 260 S.W. 470; St. Joseph v. Terminal Railroad Co., 186 S.W. 1080; Town of Montevallo v. Village School District, 186 S.W. 1078. (3) The evidence showing that defendant and those under whom he claimed title were in actual, open, notorious, continuous and adverse possession of the land in dispute, and have been claiming title thereto since 1857 or 1858, the Statute of Limitations runs against the plaintiff, and Sec. 1314, R.S. 1919, does not apply. Connecticut Mut. Life Ins. Co. v. St. Louis, 11 S.W. 969; Hunter v. Pinnell, 91 S.W. 472; St. Louis, Iron Mountain & Southern Railroad Co. v. McGee, 75 Mo. 522; Dice v. Hamilton, 77 S.W. 299.

LINDSAY, C.

This is an action in ejectment brought against the defendant William Ryan, by the city of Pacific, a city of the fourth class. The petition was filed February 1, 1921, and is in conventional form. The ouster was laid as of January 1, 1921.

The land sought to be recovered is a strip of ground about eight feet wide, extending southward from Union Street along the east ends of lots 1 and 2 of Block 27 of Blumenthal's Addition to said city. According to the plat of Blumenthal's Addition, a strip of ground fifteen feet in width from east to west was dedicated to public use as an alley, extending from Union Street south along the east ends of lots 1 and 2 of Block 27 in said addition. Blumenthal's Addition was laid out in 1856, and the plat of the addition showing the location and dimensions of the various lots and the dedication of the streets and alleys therein included, was filed for record in the Recorder's office of Franklin County on February 20, 1856. As platted, lots 1 and 2 of Block 27 are 115 feet in depth from east to west, and each is 50 feet in width from north to south. The ground in dispute is the strip in possession of defendant, which lies between the west line of the alley as platted, and the east line of lots 1 and 2 as platted. Lot 1 lies north of lot 2. They are bounded on the west by Adelaide Avenue, on the north by Union Street, and on the east by the alley in question. South of lot 2 is a parcel of ground not numbered on the plat, and bounded on the west by Adelaide Avenue, on the north by the south line of lot 2, on the east by the alley in question, and on the south by a street which, according to the testimony, is called St. Louis Street. This parcel of ground is mentioned frequently in the testimony in connection with the location of an old building formerly thereon, and with the location of the fire-house of the city, which is on said parcel of ground at or near the intersection of the west line of the alley with the north line of St. Louis Street.

The answer of the defendant, after a general denial, alleged title of defendant to the strip in controversy upon the ground that he and those under whom he claimed title, had been in the open, notorious, peaceable, continuous and adverse possession of the same, claiming title thereto, for more than thirty years before the commencement of the action. Defendant next pleaded that the land in controversy had never been used as a public alley by the city or its inhabitants, but had been occupied by the defendant and those under whom he claimed title, for more than thirty years; that defendant had erected upon said strip valuable and expensive improvements, used in connection with his barn and other improvements for more than thirty years; that defendant, during the entire period of his occupancy, claimed to own the same as his absolute property adversely to plaintiff and all others; that his occupancy of said strip had been with the knowledge, consent and approval of the plaintiff; that plaintiff by its own acts invited him to expend large sums of money in erecting barns with concrete floors on the property which would be rendered useless and valueless if he be denied the use of said strip of ground; that if said strip of land was ever dedicated to public use as an alley, it had been abandoned by plaintiff as such alley, and that plaintiff was estopped to claim title to said strip of land as a public alley or for any other purpose, and estopped from interfering with defendant's occupancy.

Upon the trial the plaintiff introduced in evidence the plat of Blumenthal's Addition which was duly recorded on February 20, 1856. Plaintiff also put in evidence a warranty deed dated July 20, 1921, from William B. Langenbacher and wife to defendant William Ryan, conveying lots 1 and 2 in Block 27 in said addition, according to the plat of said addition, and as showing the plat was adopted as a part of said deed. Defendant in open court admitted possession of the ground in dispute.

The defendant called as a witness defendant's immediate grantor, William B. Langenbacher, who testified that he acquired the title to lots 1 and 2 of Block 27 in the year 1899 from one Whitsett, and that at that time the part of the alley in controversy was inclosed by a fence belonging to Whitsett. Langenbacher testified that Whitsett fenced the alley, the part in dispute, thirty-five or forty years before the trial. He also testified that the lots were not enclosed prior to the time Whitsett bought them. Defendant also introduced testimony to the effect that in the time of the Civil War there was a store building located on the alley in question. According to this testimony the store building was on the parcel of ground mentioned as lying south of defendant's property and at the point, where the alley was not located, on the west line of the alley as the alley is platted, but upon a line coinciding with, or an extension of, the east line of lots 1 and 2, as those lots are occupied by defendant. No part of this store building stood upon lots 1 and 2. There was other testimony as to the existence and location of the store building mentioned, during the time of the Civil War, in 1863 and 1864. Defendant also introduced testimony that at the time Langenbacher bought lots 1 and 2 there was an ice-house, an old building, situated mostly on lot 2, and a little of it on lot 1, and that the east line of this ice-house was on the line which now constitutes the east line of the property, as it is now occupied, by the defendant. The testimony was to the effect that this ice-house was there as far back as about fifty years before the trial. Langenbacher testified that he tore down the ice-house after he bought lots 1 and 2 from Whitsett. He built a barn on the property, and also a shed with concrete floors, and this shed extends over the strip in dispute.

Other portions of the evidence will be mentioned as required in the discussion of the issues to be determined. The court refused the declarations of law offered by plaintiff as to adverse possession and estoppel, and in rendering judgment for defendant, made findings of fact which followed the allegations of defendant's answer on both adverse...