City of St. Louis v. Wiggins Ferry Co.

• Decision Date: 30 April 1886
• Citation: 88 Mo. 615
• Parties: THE CITY OF ST. LOUIS v. WIGGINS FERRY COMPANY, Appellant.
• Court: Missouri Supreme Court

88 Mo. 615

THE CITY OF ST. LOUIS

v.WIGGINS FERRY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

R. H. Kern and Noble & Orrick for appellant.

(1) The agreement of January 28, 1853, is inoperative and of no force, because it was never perfected as contemplated and as required by its terms. (2) If, however, it is true that a less number than the whole could be bound by the agreement, then that number is certainly fixed to be holders of not less than fifteen hundred feet: and there is no evidence that such number signed the agreement. Anderson v. City, 47 Mo. 479. (3) The city here claims a specific lot or parcel of land exactly described by metes and bounds. No such property is described in the agreement, nor can it be ascertained by the only parts of plat “A” referred to in the contract. (4) The contract is void for uncertainty of description. (5) Even if the contract were properly executed by parties owning fifteen hundred feet, other express conditions thereof precedent to any title vesting in the city were not performed by it and ejectment cannot now be maintained thereon. (6) But even as a condition subsequent, the foregoing covenants were valid against the plaintiff, and the failure on the part of plaintiff to perform the condition, even as a condition subsequent, caused a forfeiture of the agreement. Bank v. Drummond, 5 Mass. 321; Hubbard v. Hubbard, 97 Mass. 191, 192. (7) Regarding the contract of 1853, from another point of view, we shall arrive at the same conclusion as above, as to the subject-matter; the contract relates not to the fee in the land, but to the easement merely, and the plaintiff does not now claim that the fee ever passed. Wash. on Easements, p. 29, sec. 3; Portmore v. Brem, 3 Dowling & R. 145. (8) The city abandoned and rescinded the contract and instituted condemnation proceedings against the parties of the first part, years before this action.

Leverett Bell for respondent.

BLACK, J.

This is an action of ejectment for that part of north wharf which lies between two adjacent streets in the city of St. Louis when produced to the river. The defendant is in possession under leases made to it in 1870 by Benoist, Page and Bogy. The city claims possession by virtue of a deed made in 1853, by some forty odd persons, including the defendant's lessors. These lessors are, therefore, the common source of title beyond which we need not inquire.

The substantial portions of the deed, so far as material to this case, are as follows: The first parties describe themselves as owners and part owners of real estate fronting on the west bank of the Mississippi river, from Cherry street to northern limits of the city; and for one dollar and the advantages to accrue to them from the improvement of the wharf, etc., convey to the city all their title to all lands lying eastwardly of the proposed western boundary line of the wharf as shown on a plat annexed to the deed. “ Provided, also, that 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 provisions for opening the whole of said wharf at the earliest period consistent with the public interest, and the means of said city, before this contract shall be binding on the first parties or any of them;” and the said second party covenants with the said first parties “that one-half of the wharfage collected annually shall be expended on the wharf north of Cherry street,” etc., the expenditures only to be made on those parts relinquished by the first parties, or to which the city shall otherwise acquire a right for wharf purposes. The city by the same deed relinquished to the first parties all of its title to all accretions west of the western boundary line of the proposed wharf.

1. A contention on the part of the appellant is that this deed never took effect, because the ordinance, by authority of which the deed was made, contains a clause to the effect that the agreement having reference to the deed shall be binding on the city as soon as the owners of fifteen hundred front feet of the wharf have executed the same to the satisfaction of the mayor. Although it was not shown on the trial of this cause that the deed had been signed by persons owning that number of front feet, still the deed was acknowledged by all of the parties thereto, and was put to record in January, 1854. In the absence of any evidence to the contrary, it must be presumed that the deed was delivered as well as signed by the prescribed number of property owners. Besides this presumption, the city entered upon the performance of the agreements contained in the deed shortly after its date, and by so doing...