Appeal from St. Louis Circuit Court; James E. Withrow, Judge.
Condemnation suit by the City of St. Louis against Louisa Barthel and others. From a judgment in favor of the city, defendants J. E. Brawner and others appeal. Affirmed.
This suit was duly instituted in the circuit court of the city of St. Louis to condemn certain lands particularly described in the petition for street purposes. A trial was had, which resulted in a judgment for the city, and the defendants J. E. Brawner, W. P. McCrory, and Anna M. Hilton appealed the cause to this court.
The common source of title, as I gather from the record, was Henry Elbreder, who owned the land and died intestate in the year 1860. The street in question was Compton avenue, and the strip of ground sought to be condemned was some seven blocks in length, and among other tracts was one 30 feet wide and some 600 feet in length, claimed by the appealing defendants as belonging to them. The city claims this particular strip of ground under a partition decree, dedicating it for street purposes in the year 1874; while appellants claim through mesne conveyances from Elbreder.
The real contention of the parties to this appeal is fairly well stated by counsel for appellants in the following language: "On November 14, 1908, respondent filed in the court below a petition for the condemnation, as a public highway of respondent, of the west half of Compton avenue, as shown on the Elbreder partition plat, and marked `Reserved' thereon, and marked, `Anna M. Hilton,' as owner, pursuant to ordinance on the plat attached to the report of the commissioners in the cause, which piece of land is 30×600 feet. The proceedings were regular, and there is no conflict in the testimony or evidence nor any objection to any of the documentary evidence that challenges the sufficiency of any of it for the purpose for which it was intended, leaving only the proper construction of the pleadings, report of the commissioners, and the evidence to be passed on by this court, to determine whether there had been a dedication, or an acceptance by respondent of the same if made, of said land, as a public highway, either by dedication shown by said commissioners' plat, or by calls for Compton avenue as a bounding street in conveyances made by the heirs."
As indicated by the foregoing statement of counsel, there is no dispute as to the facts
and, since they are fully set out by counsel for respondent I will adopt their statement as the statement of the case, which is as follows:
"Commissioners (in this suit) were duly appointed after proper service upon all parties who owned or claimed any interest in the property, and their report, together with plats attached thereto, which were furnished by the street commissioner of the city of St. Louis under authority of ordinance, were filed in the circuit court on the 13th day of October, 1909. The plat attached to the report of the commissioners in this condemnation suit shows the following situation: That Compton avenue from Gravois avenue southwardly to Osage street was a public highway in the city of St. Louis of irregular width. At some places it was 30 feet wide; at others 60 feet wide. The purpose of this ordinance, as shown by the plat, was to make a street with uniformly straight east and west lines, from Gravois avenue to Osage street, 60 feet wide. It shows that the center line of the proposed street was a straight line extending from Gravois avenue to Osage street, and that to make it 60 feet wide through this entire length in some cases required the condemnation of 30 feet westwardly from this center line, and in some cases 30 feet eastwardly from the said line; at other places it is already 60 feet wide. Compton avenue is a north and south street. The section of Compton avenue included within ordinance 23567 from Gravois avenue to Osage street is crossed by the following east and west streets southwardly from Gravois avenue in the following order: Utah street, Cherokee street, Potomac street, Miami street, Winnebago street, Chippewa street, Keokuk street, and Osage street. As the exceptions filed on the part of the defendant Hilton relate only to property which she claims, we shall describe the blocks bounded on the north by Winnebago, and on the south by Chippewa street, a little more minutely. The plat appearing in the appellants' abstract shows city block 1,619, and one-half of city block 1,622. The strip of land shown on this plat which Anna M. Hilton claims to own in fee extends from the south line of Winnebago street to the north line of Chippewa street, a distance of 600 feet, and has a width of 30 feet. This strip of land 30 feet wide is the western half of Compton avenue as established by ordinance 23567. The eastern half of this street is shown on this plat with the following notation (which is very indistinct): `Heirs of William B. Betts, deceased, viz.: Elizabeth L., William, Carrie, Leonard Betts, and Julia Parsons, wife of Charles T.' This strip of land has the same dimensions as the strip in which appellant Hilton claims an interest. It is the eastern half of the street and extends from Winnebago southwardly to Chippewa street. The plat shows city block 1,619 as Elbreder's estate subdivision; the plat shows city block 1,622 as Betts' subdivision. Virginia avenue bounds city block 1,619 on the west, and Michigan avenue bounds city block 1,622 on the east. Both blocks are subdivided in the same manner. Each block has a frontage of 270 feet on the south line of Winnebago street, and 270 feet on the north line of Chippewa street. Block 1,622 has a frontage of 600 feet on the west line of Michigan avenue, and block 1,619 has a frontage of 600 feet on Virginia avenue. There are 12 lots in each block fronting on Compton avenue between the alley south of Winnebago street and the alley north of Chippewa street. The lots in city block 1,619 extend from the west line of the property in which the appellant Hilton claims an interest westwardly for a distance of 125 feet to an alley. The lots in city block 1,622 front upon the east line of the strip of land, in which the heirs of William Betts claim an interest, and extend eastwardly for a distance of 125 feet to an alley. These 24 lots, 12 in city block 1,619, and 12 in city block 1,622, have no outlet, except over the two strips of land in which Hilton and Betts claim an interest. In city block 1,619 the 12 lots fronting on this strip of land claimed by Hilton are owned by 11 separate and distinct proprietors, and if the contention of the appellant be true that the land shown on the plat in the name of Anna M. Hilton is not a street, and that the alley in the rear shown in the name of the heirs of Elbreder is not an alley, the present owners of this property have no possible method of getting to their property except over the property of others.
"In the year 1849 the east half of the southwest quarter of block 69 of the commons of the city of St. Louis was acquired by Henry Elbreder in a partition by a partition deed. This eastern half of the southwest quarter of block 69 comprises what is shown by the plat in the appellants' abstract, at page 10, as city block 1,619 (which will be presently set out and marked `Exhibit A'). Henry Elbreder died in 1860 and at the time of his death he was still the owner of this property, now known as city block 1,619. On May 11, 1874, a partition suit was instituted in the circuit court of the city of St. Louis for the partition of this property among the heirs of Henry Elbreder. Commissioners were duly appointed and returned into court their report in the proper form, partitioning all of this property on the 30th day of November, 1874. The plat showing the method of partition was attached to said report (which will be set out and marked `Exhibit B').
"The commissioners' report in partition recites that they `proceeded to view and examine the premises, and they thereupon laid them off in blocks and lots, in compliance with the manner of subdividing lots and blocks within the limits of the city of St. Louis, and with a view to the future opening and widening of streets and alleys, and reserved sufficient ground for the purpose of
...
