City of St. Charles v. De Sherlia

Decision Date01 October 1957
Docket NumberNo. 29912,29912
Citation308 S.W.2d 456
PartiesCITY OF ST. CHARLES, Missouri, a Municipal Corporation (Plaintiff), Respondent, v. Harold DE SHERLIA and Gertrude DeSherlia (Defendants), Appellants.
CourtMissouri Court of Appeals

Robert V. Niedner, Paul F. Niedner, St. Charles, for appellants.

Andrew H. McColloch, St. Charles, for respondent.


This is an action in ejectment which was brought by the City of St. Charles to recover possession of a certain strip of land alleged to be part of a public street in said city. The defendants are Harold DeSherlia and Gertrude DeSherlia, husband and wife, owners of land abutting on the alleged street.

The petition alleged that in 1910 Annie Dallmeyer conveyed a tract of land to William Bredenbeck and Amanda Bredenbeck, and by said deed also dedicated to the public for use as a street a strip of land 25 feet in width and 350 feet in length located in the City of St. Charles; that said street had for many years past been opened and traveled by the public; that the owners of real estate abutting upon said street and their predecessors in title have, ever since the 29th day of December, 1910, acknowledged and recognized the right of plaintiff and the public to use said strip for street purposes; that title thereto became vested in plaintiff for the use of the public for street purposes, and that plaintiff was entitled to the possession thereof; that defendants entered into possession of said strip of ground and obstructed same and prevented its use as a public street by placing thereon concrete building blocks and motor vehicles parked crosswise on said street; and that although demand was made on defendants to cease said practice they have continued to obstruct said street. The petition prayed judgment for possession, and for costs.

By their answer, defendants admitted the execution of the deed by Annie Dallmeyer, but denied that thereby said street was opened, dedicated or created. It was denied that said street had for many years been opened and used for street purposes by the public, and that the abutting property owners had, since the 29th day of December, 1910, acknowledged and recognized the right of plaintiff and the public to use said strip of ground for street purposes. It was denied that title to said ground became vested in plaintiff upon execution of said deed and use by the public. Further answering, defendants admitted that they, their servants and agents, were using said land so as to obstruct the use thereof by others. It was then alleged that they entered upon said strip 'more than ten years ago and have been in open, notorious, hostile, adverse, continuous and exclusive possession of said strip ever since said time.' The prayer of said answer was that defendants be dismissed with their costs.

Defendants also filed a counterclaim in which they alleged that they entered upon said strip of land in question on March 15, 1941, and since said time have been in continuous adverse possession thereof. Said pleading then, after alleging that plaintiff was making some claim of interest in said land adverse to defendants' ownership, prayed that the court try and determine the title to said strip of land and for decree that defendants are the rightful legal owners of said strip of land. Plaintiff, by its reply to the counterclaim, denied defendants acquired the title by adverse possession, and again asked for the relief as prayed in its petition.

The trial of the ejectment suit was to a jury, and the hearing on the counterclaim was to the court. There was a verdict for defendants on plaintiff's cause of action, and a finding by the court against defendants on their counterclaim. Judgment was entered accordingly.

Defendants filed no after trial motion, and took no appeal. Plaintiff filed a motion to set aside the verdict in the ejectment suit and to enter judgment in its favor or, in the alternative, for a new trial. The trial court sustained the alternative motion for new trial and assigned as reasons therefor that the verdict was against the weight of the evidence and that instructions A and B, given at the request of defendants, were erroneous. Defendants thereupon appealed to the Supreme Court from the judgment and order granting a new trial. The Supreme Court transferred the cause to this court on the ground that it was without jurisdiction of the appeal. City of St. Charles, Missouri, v. DeSherlia, Mo.Sup., 303 S.W.2d 32.

Defendants' principal contention on this appeal is that plaintiff was not, under its petition and under the evidence adduced, entitled to a judgment in its favor, and for that reason the court erred in sustaining plaintiff's motion for new trial.

It is within the trial court's discretion to grant one new trial upon the ground that the verdict is against the weight of the evidence. Section 510.330 RSMo 1949, V.A.M.S. Such an order will not be interfered with absent an abuse of discretion. Woods v. Ogden, Mo.Sup., 102 S.W.2d 648; Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150; Stegner v. Missouri-Kansas-Texas R. Co., 333 Mo. 1182, 64 S.W.2d 691; Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445. There is no abuse of discretion where it appears that substantial evidence was introduced upon which a jury could have reasonably arrived at a verdict contrary to the one returned. Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445; Geiger v. City of St. Joseph, Mo.App., 198 S.W. 78; Leavel v. Johnston, 209 Mo.App. 197, 232 S.W. 1064. If plaintiff in the case at bar made a submissible case we cannot disturb the action of the trial court in granting a new trial on the ground that the verdict was against the weight of the evidence. Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150. But if plaintiff, under its petition and the evidence adduced, was not entitled to go to the jury, then the order of the trial court setting aside the verdict for defendants cannot be permitted to stand. Thompson v. Granite Bituminous Paving Co., 199 Mo.App. 356, 203 S.W. 496.

We shall state the evidence favorable to plaintiff and disregard defendants' evidence unless it aids the plaintiff's case, for the reason that in passing on the issue presented the plaintiff is entitled to all the evidence in its favor and all the favorable inferences therefrom. Wattels v. Marre, Mo.Sup., 303 S.W.2d 9.

On December 28, 1910, William Bredenbeck purchased a lot from Annie Dallmeyer. The land was conveyed by warranty deed which described said property as being 'A Lot of ground in the City of St. Charles, being part of the Prairie Haute Common Fields, fronting seventy-five feet (75') on the northwest side of Lindenwood Avenue (formerly called Orchard Street) and extending back at right angles to said Lindenwood Avenue a depth of One Hundred and Sixty feet (160') to an alley thirty feet (30') wide * * *.'

In said deed also appears the following agreement: 'And said party of the first part does further promise and agree to open and dedicate and by these presents does open and dedicate to the public a strip of ground for a public street, twenty-five feet (25') wide and adjoining on the northeast the center line of West Clark Street prolonged northwestwardly from Lindenwood Avenue a distance of Three Hundred and Fifty feet (350'). Also a strip of ground for a public alley thirty feet (30') wide and and hundred and seventy-five feet (175') long, the same being parallel to Lindenwood Avenue and a distance of one hundred and sxity feet (160') therefrom and extending northeastwardly from said prolongation of West Clark Street. A plat showing the location of the lot of ground hereinabove conveyed and also the location of said strips of ground dedicated as a public street and a public alley being hereto attached and made a part of this deed.'

Attached to said deed was a plat described thereon as 'Plat of property belonging to Annie Dallmeyer being in Prairie Haute Common Fields, lying northwest of Lindenwood Avenue and northeast of West Clark Street prolonged, showing location of lot therein sold to William Bredenbeck and Amanda Bredenbeck and also locations of northeast half of West Clark Street prolonged and thirty foot strip through said property, both dedicated to public use.'

This deed, together with the plat, according to the certificate of the Recorder of Deeds of St. Charles County, was filed for record on December 29, 1910, and recorded in Book 111, being at page 145 of the records of said county.

The plat in question shows Lindenwood Avenue running in a northwestwardly and southeastwardly direction. The property described in said plat as belonging to Annie Dallmeyer extends 200 feet on Lindenwood Avenue with a depth northwestwardly of 350 feet. The land in dispute is shown as being located along the whole length of the southwest side of the property. It is 25 feet wide, and is marked on the plat as the 'northeast 1/2 of West Clark Street prolonged = 25 feet wide.' Clark Street, 50 feet wide, enters Lindenwood Avenue just opposite the place where the 25 foot strip connects with Lindenwood Avenue. The plat shows three lots fronting on Lindenwood Avenue. The first lot northeast of the 25 foot strip is marked on the plat as unsold. It fronts 50 feet on Lindenwood Avenue and has a depth of 160 feet to a strip of ground marked on the plat as 'alley 30 feet wide.' This alley is the one described in the Bredenbeck deed as being dedicated to the public. The lot was afterwards sold to a Mr. Bowles.

Immediately northeast of the Bowles lot, and fronting on Lindenwood Avenue, is the Bredenbeck lot. It also abuts the alley. Its dimensions are 75 feet by 160 feet. Northeast of the Bredenbeck lot is a lot marked on the plat as being sold to Mary R. Loonam. It has a width of 50 feet fronting on Lindenwood, and extends northwestwardly 160 feet to the alley. Across the alley from these three lots is a lot marked on the plat as unsold. It...

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