City of St. Louis v. St. Louis, I. M. & S. Ry. Co.

Decision Date24 December 1912
CourtMissouri Supreme Court
PartiesCITY OF ST. LOUIS v. ST. LOUIS, I. M. & S. RY. CO. et al.

Appeal from St. Louis Circuit Court.

Action by the City of St. Louis against the St. Louis, Iron Mountain & Southern Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

R. T. Railey and James E. Green, both of St. Louis, for appellants. L. E. Walther and Henry W. Allen, both of St. Louis, for respondent.

LAMM, J.

Ejectment. Issue joined on separate general denials. Judgment for plaintiff. Both defendants appeal.

Many years before Carondelet was merged in St. Louis by the scheme and charter, its "commons" were surveyed and platted by authority, there appearing therein two city lots or blocks, to wit, 77 and 66; the latter lying north of and being coterminus with the former. Subsequently subdivided and replatted, they, in part, are now known as blocks 3244, 3243, and 3191. Those several numeral designations are referred to in the evidence; but, for convenience, we will use the ancient numbers. Lying east of those blocks, bounded by them on the west and by the Mississippi river on the east, is a strip 923 feet more or less from north to south, 156 feet more or less in width at its north end, and 351 feet more or less in width at its south end, described by metes and bounds in the petition, including therein parts of certain streets known as Marceau and Hurck, which lies on the river bank and is the land in dispute. St. Louis claims possession on the theory it is the successor of Carondelet in title, and that the part of the river bank in dispute is part of the old commons of Carondelet, belonging to that town by a direct grant from the United States. Defendant railway company claims title as riparian owner and by adverse possession.

In determining the controversy, we shall start out with certain assumptions, based either on undisputed proof or on concessions made below at the trial, or on repeated adjudications by the Supreme Court of the United States (and by this court) establishing the significance, scope, and validity of certain ancient surveys relied on, and interpreting certain early legislative grants made by the United States government and enabling acts passed by the General Assembly of this state, all pertinent to the issues. The dates, history, scope, and effect of those early acts have been so often set forth in our decisions we need not take space to do so again. Those assumptions are: (a) That by the scheme and charter the city of St. Louis succeeded to all rights and title of Carondelet existing at that time (1876) to her commons. (b) That originally, for all purposes of this case, blocks 66 and 77 were part and parcel of the commons of Carondelet, to which she had title in fee from the general government. (c) That, nothing to the contrary appearing, those commons would include the strip in dispute, lying east of those two blocks and running to the west bank of the Mississippi river. (d) That by a chain of title, whereby Carondelet first leased and then sold those blocks, defendant railway company by mesne conveyances holds record title to blocks 66 and 77. (e) That defendant Wiggins Ferry Company is its present tenant. (f) That at the time of suit defendants were in possession of the tract in dispute, claiming title. (g) That under legislative grants of power, Carondelet could sell or lease her commons at the several times she leased and afterwards sold blocks 66 and 77. (h) That since August 1, 1866 (G. S. 1865, p. 746, § 7, c. 191, reading: "Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this state"), title could not be acquired by adverse possession to lands given or granted for a public use. That wise statute has been brought down as live law to this day (Vide, R. S. 1909, § 1886), and can nowhere be more beneficially applied than in preserving to cities, where the facts warrant, grounds on the banks of navigable rivers for levees, wharfs, and water fronts.

Those assumptions leave open only two questions, to wit: (1) Was title lost to the city by adverse possession of 10 years prior to August 1, 1866? (2) Is the tract such an accretion to blocks 77 and 66 as inured to the owner of those blocks as a riparian right? They are so related by overlapping and interdependence that they may be taken together, and, so taken, both, we think, must be answered in the negative. This because:

1. The outboundaries of the commons of Carondelet were determined by the general government by an official and approved survey made in 1834, known as "Brown's survey." Dent v. Sigerson, 29 Mo. 489. That survey extended to the Mississippi river and took in the strip in dispute, if it then existed. There being no countervailing contention made, one of our assumptions, "b," was to that effect. These commons included several thousand acres, and were not all platted at the same time. There was an early plat made by one Eiler of a portion of the commons lying a little north of blocks 66 and 77. Presently one Mackay in 1847 officially platted the territory lying south of that covered by the Eiler plat, and extending on south to the River Des Peres, covering many blocks of irregular areas, among them 66 and 77. Both those plats or maps may be found in St. Louis v. Railway Co., 114 Mo. 13, 21 S. W. 202 (q. v.), and neither will be reproduced here. Mackay's, as did Eiler's, showed a strip or ribbon of shore land between the east boundary line of the blocks in the plat and the river. In Eiler's it is called "a tow or water street." In Mackay's it is not named at all, but seems to be a continuation of the designated strip in Eiler's. St. Louis v. Railway Co., 114 Mo. 22, 21 S. W. 202, supra. In early instruments in this record this strip is spoken of as "the levee, bank, street, or tow path."

Some significance is attached by appellants' counsel to the fact that on the Mackay plat there is a small break in the strip's east boundary line, where that boundary, the water line, reaches a point about opposite the southeast corner of block 66 in the line of its direction south. As we grasp their suggestion, it is that, whatever be the fact as to block 66, there is nothing on Mackay's map to indicate that east of block 77 there was any land in existence at the time his survey and plat were made and recorded. But we cannot follow the lead of that suggestion, since a little further down on the plat we find the marked channel of the River Des Peres (which river is the southern boundary of the Mackay plat) projecting its channel on the map eastwardly beyond the east line of the east tier of blocks, and evidently through a strip of ground lying east of the eastern outboundary of the platted territory until it stops, presumably at the Mississippi's water edge. Moreover, the abrupt termination of the Mississippi's water line on the plat before reaching the River Des Peres, without any curve or continuation, is made in such way as lends no color to the insistence that the water line and block line unite as one in front of block 77. So, too, in 1854 there was a partition in kind of block 77 among its owners, and the commissioners filed a plat of the land partitioned, as part of their report, showing a street east of the block and between it and the Mississippi river.

We lay little or no stress on the mere designations of this strip in these ancient instruments as "a tow" or a "street" or a "levee,"...

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