City of St. Louis v. Wiggins Ferry Co.

• Decision Date: 12 February 1884
• Citation: 15 Mo.App. 227
• Parties: CITY OF ST. LOUIS, Respondent, v. WIGGINS FERRY COMPANY, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 227

CITY OF ST. LOUIS, Respondent,

v.WIGGINS FERRY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1884.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

C. S. HAYDEN and R. H. KERN, for the appellant: The description in the deed is so uncertain as to render the deed void.-- Campbell v. Johnson, 44 Mo. 247; Holme v. Shaufman, 35 Mo. 273; Bell v. Dawson, 32 Mo. 79. A grant of an easement can be made only by a person who has the entire interest in the soil.--Washburn, on Easements, p. 29, sect. 3; Portmore v. Brenn, 3 Dow. & R. 145.

LEVERETT BELL, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

This is an action of ejectment. By the effect of record entries made before and at the trial, the controversy is confined to a parcel of land described thus: A tract of land in the city of St. Louis, lying east of city block two hundred and thirty-six, extending from the eastern front line of said city block to the Mississippi River, bounded on the north by the south line of Bogy Street produced to said river, on the south by the north line of Mound Street produced to said river, on the east by said Mississippi River, and on the west by the eastern front line of said city block two hundred and thirty-six. The trial was before the court, sitting as a jury, and resulted in a judgment for he plaintiff.

There was a common source of title in L. A. Benoist, L. V. Bogy, and Daniel D. Page, under whom the plaintiff claimed by virtue of a conveyance or contract dated January 28, 1853, and the defendant under leases from the same persons dated June 1, 1870. The controversy turns chiefly upon the effect to be given to the first mentioned instrument, which reads as follows:--

“Know all men by these presents, that we, the undersigned, respectively, being the owners and part owners of the real estate on the westwardly bank of the Mississippi River, in front of the city of St. Louis, from the north side of Cherry Street to the northern boundary of said city of St. Louis, of the first part, and the said city of St. Louis of the state of Missouri, of the second part.

Witnesseth, that the said first parties respectively, each for themselves, for and in consideration of the sum of one dollar to each of them in hand paid, by the said party of the second part, the receipt whereof is hereby acknowledged, and also, for the further consideration of the advantages resulting to each of them, from the improvements growing out of the extension of the wharf of said city from the north side of said Cherry Street to the northern limits of said city, and also for the further consideration of the relinquishment by said city, to the parties of the first part respectively, of all claims whatever, either in law or equity, so far as the parties of the first part may respectively own lots or part of lots bounding thereon, of, in, and to all accretions west of the ‘proposed western boundary line of wharf’ as shown on the annexed plat marked ‘A,’ which is referred to and made a part of this contract, and, also, for the further consideration of the covenants and stipulations hereinafter entered into by and on the part of the said city of St. Louis, they, the said parties, have, and by these presents do respectively, each for himself, forever release, convey, and confirm unto the said city of St. Louis, all their right, title, interest, and claim of every description whatever, of, in, and to any and all lands lying eastwardly of and adjoining the above designated line on said plat denominated the ‘proposed western boundary line of wharf,’ for the purpose of making a public wharf for said city. Where the red line exists on said plat, the said first parties respectively, each for themselves, do hereby release and forever convey to said city all the land in front of that line, and where the red line is broken, then all the land eastwardly of the black line as above designated on said plat is hereafter to be the limit of said first parties' respective claims eastwardly, and also all the right, title, interest, and claim of every description whatever of the said first parties respectively of, in, and to all the land lying westwardly of the ‘proposed western boundary line of wharf’ and eastwardly of the eastern line of ‘Exchange Square,’ as originally laid out by William Chambers, William Christy, and Thomas Wright, as shown by them on their map of a part of north St. Louis, dated the first day of January, eighteen hundred and seventeen, as will more fully appear by said map recorded in the recorder's office of St. Louis County, which is referred to and made part hereof for greater certainty, which ground lies between Jefferson and Warren Streets, as shown on said first named plat marked ‘A;’ provided, however, that said city shall not use said last named piece of land hereby conveyed for any other than such public purposes as ‘Exchange Square’ was originally dedicated by the proprietors aforesaid and in connection with the interests of said wharf, nor shall said city build on it or otherwise obstruct the view of the owners of property west of said ‘Exchange Square,’ and provided, also, that the said city of St. Louis shall establish the wharf by ordinance in conformity with said plat ‘A’ (including the widening westwardly between Biddle and Florida Streets), and shall also make provision for opening the whole of said proposed wharf at the earliest period consistent with the public interest and the means of said city, before this contract shall be binding on said first parties, or any of them; and the said second party covenants with the said first parties respectively, that one-half or the whole wharfage annually collected by said city, from and after the second Monday of April, eighteen hundred and fifty-three (or so soon as the flat and descending plane of the wharf between Cherry and Plum Streets shall be completed, provided, in any event, the period shall not be extended beyond the second Monday in April, eighteen hundred and fifty-four), shall be expended on the wharf north of Cherry Street simultaneously as follows, to wit: One-half of said half, being one-fourth of the whole, shall be expended on said wharf between said Cherry and East Mound Streets annually, and the remaining fourth of the entire wharfage annually collected shall in like manner be expended on and for the improvement of the wharf between said East Mound Street and the northern limits of said city, in such manner as the council of said city may by ordinance direct, until the entire wharf owned by the city shall be improved, the said expenditures, however, only to be made on those parts of the wharf relinquished by said first parties respectively, or to which the said city has or shall otherwise acquire right or title for that purpose; and, also, the said city is to refund to those parties respectively signing this instrument, who claim the wharf between Cherry and Biddle Streets, all expenditures made by each respectively for the improvement thereof, with interest on the same from the date of expenditure, the account of each expenditure to be verified by proper vouchers and affidavits to the satisfaction of the city engineer, who shall draw his warrant for the same upon the auditor of said city, chargeable to the wharf, and the amount so certified shall be paid out of and charged to the general wharf funds.

In consideration of all which the said city of St. Louis doth hereby forever relinquish and convey to said first parties respectively, their heirs and assigns forever, all right, title, interest, and claim whatever, either in law or equity, of, in, and to all accretions west of said proposed western boundary line of wharf, as shown on the said plat ‘A,’...