City of St. Louis v. Clegg

• Decision Date: 19 July 1921
• Citation: 233 S.W. 1,289 Mo. 321
• Parties: CITY OF ST. LOUIS v. EMMA CLEGG, Appellant
• Court: Missouri Supreme Court

233 S.W. 1

289 Mo. 321

CITY OF ST. LOUIS v. EMMA CLEGG, Appellant

Supreme Court of Missouri, Second Division

July 19, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Kent K. Koerner Judge.

Affirmed.

W. B. & Ford W. Thompson for appellant.

(1) The appellant claims, first, as to dedication, that the authorities are uniform in regard to dedication, viz.: that three things must always inhere in every case of dedication (a) The question of intent; (b) The fact of dedication; (c) The acceptance. The plat recorded in this case is a private plat, which had been made for a number of years before it was recorded, and it is expressly stated on the plat that this is a proposed street, never was dedicated as a street in any way; nor are there any words of dedication on the plat whatsoever. In other words, the plat does not show the dedication of the property, nor is there any unrecorded plat that shows a dedication of the property; nor is there any dedication in accordance with the statute. It is a mere proposed survey, not signed by the owner or recorded by his authority. It is signed by the surveyor, and put of record without any authority or consent of the owner shown, and there is no authority under the statutes for putting such an instrument of record, so that the instrument itself is no act of dedication. 13 Cyc. 497, 478, 479, 483, 484; Downer v St. Louis Ry. Co., 23 Minn. 271; Coberly v. Butler, 63 Mo.App. 556; Field v. Mark, 125 Mo. 502; Balmat v. City of Argenta, 184 S.W. 445; 1 Elliott on Roads & Streets, sec. 133. (2) The facts in this case contradict any acceptance by the city of any part or portion of Glades Avenue except the mere fact that a special tax clerk did not assess it, and treated the Cozens survey as a dedication, and it is for the court to determine whether or not after the state and city assessor, whose duty it was under the general laws and the ordinances to assess for taxation all property except public property, had assessed this property for years, the city would be entitled, upon the filing of this plat for record, to treat the filing of the plat as an acceptance and dedication of the strip of land as a public highway, by the authority exercised by a special tax clerk who claimed that the filing of the plat was a dedication. We think there could be no controversy over such a question, and especially when a part of that same plat, on which a fifteen-foot alley is mentioned, was by this same tax clerk assessed as private property. (3) There is no evidence of a public use of this property that would constitute a dedication: (a) Because it is admitted that in 1908 the entire lot 8 of Prather's subdivision was assessed for the sewer taxes, including the strip in controversy. (b) It is also admitted that all of lot 8, including the strip in controversy, was assessed in 1911 for the paving of Forest Avenue by the system used in the special tax department of absorption. (c) Because there is no evidence that the property was open to public use for any definite time. (d) That the circumstances under which Heil's deed was made and the fact that he conceded that he fronted on a private street, would not constitute this deed, and the calls in this deed, a dedication of anything except to private use. (e) The contract made by Heil with Mrs. Clegg would be considered nothing more than a dedication to private use, which is not authorized. (f) All the evidence relating to the assessment and collection of taxes by the city, both general and special, against the land in controversy, and the payment thereof by the owner, is to be considered as circumstances in connection with all other facts in evidence on the issue of whether the public user was permissive or hostile and adverse. St. Louis v. Woodwork Co., 216 S.W. 944; Coberly v. Butler, 63 Mo.App. 556; Fields v. Marks, 125 Mo. 502.

Charles H. Daues, H. A. Hamilton, and G. Wm. Senn for respondent.

(1) Upon deed of conveyance for property bounded by a street, the reversion in the fee to the adjacent part of the street passes to the grantee with the fee to the lot described as conveyed -- i. e., in the absence from the deed of words of expression, or of necessary implication, of the exception by the grantor from the conveyance of the fee in the adjacent street. Baker v. St. Louis, 75 Mo. 671; Snoddy v. Bolen, 122 Mo. 479, 485, Grant v. Moon, 128 Mo. 48; Thomas v. Hunt, 134 Mo. 401; Impr. Co. v. Railroad, 255 Mo. 519; 525; Cochrane v. Ry. Co., 94 Mo.App. 473; Restetsky v. Railroad, 106 Mo.App. 387. (2) Where the area included within the proposed public street is burdened in favor of adjacent lots with easements in the nature of a street use, private or public, the owner is entitled upon condemnation for formal establishment of a highway to recover nominal damages only: McKee v. St. Louis, 17 Mo. 191; In the matter of Lewis Street, 2 Wend. 472; Olean v. Steyner, 135 N.Y. 341; In the matter of Adams, 141 N.Y. 297; Stetson v. Bangor, 60 Me. 313, 321; Bartlett v. Bangor, 67 Me. 464; Crowell v. Inhabitants of Beverly, 134 Mass. 98. (3) (a) Upon, a deed for conveyance of property, describing and bounding the same by a street is a call for a street operating in the nature of a covenant by the grantor for, or operating in the nature of an estoppel of the grantor to deny the establishment and existence of, such street. McKee v. St. Louis, 17 Mo. 191; Moses v. Dock Co., 84 Mo. 247; Heitz v. St. Louis, 110 Mo. 618; Field v. Mark, 125 Mo. 502; Hatton v. St. Louis, 264 Mo. 643; Crowell v. Inhabitants of Beverly, 134 Mass. 98; In the matter of Lewis Street, 2 Wend. 472; In the matter of Twenty-ninth Street, 1 Hill, 189. (b) And in connection with such deed, it is proper to consider a plat or survey of record relating to the property. Buschmann v. St. Louis, 121 Mo. 535; Longworth v. Sedevic, 165 Mo. 221; City v. Barthel, 256 Mo. 275. (c) And, as further related, are considered in connection with such deed and plat or survey the physical facts, e. g. fences and other structures, existing and adjacent continuations of the same street, as indicating the intention to establish a street. Benton v. St. Louis, 217 Mo. 701; State v. Transue, 131 Mo.App. 330. (d) The element of assessments for taxes and of omission from taxation is likewise, in the premises, considered to have a bearing upon the question of intention to create a street. Moses v. Dock Co., 84 Mo. 247; Hatton v. St. Louis, 264 Mo. 644.

OPINION

WALKER, J.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, appropriating certain property for street purposes.

A petition to establish, open and widen Glades Avenue, in the City of St. Louis, was filed by the city in the circuit court. Among other defendants named was the appellant. Commissioners were appointed, who awarded appellant nominal damages for her property taken and assessed her benefits at $ 210.60. She had owned the property here involved many years. Prior thereto, it had belonged to her husband, now deceased, who, on the 3d day of September, 1886, had a survey made of it. This survey was filed in the office of the Recorder of Deeds of the City of St. Louis, on July 24, 1909. It designates the property as located "on Glades Avenue." The filing of this survey was subsequent to the making and delivery of a deed by appellant to one Chas. P. Heil, on July 13, 1909, "for a lot on Forest Avenue, extending along the south line of Glades Avenue." On July 12, 1915, the grantee, Heil, made a contract in writing with appellant, with reference to Glades Avenue, which, omitting superscription and the signatures of the parties, is as follows:

"This is to certify that I, Mrs. Emma Clegg, residing at Garner and Prather Avenue, in the City of St. Louis, agree to sell to Mr. Chas. P. Heil, residing at Garner and Forest Avenues, City of St. Louis, a strip of ground laying between his property on the southeast corner of Glades Avenue and Forest Avenue and for a depth of 200 feet eastwardly on said Glades Avenue. Said part or parcel of property five feet more or less that may be left between his property and said contemplated forty-foot street, to be opened by the City of St. Louis as petitioned for by said Mr. Chas. P. Heil, Mrs. Emma Clegg and others, for a consideration of ten dollars per front foot on Forest Avenue and a depth of 200 ft. on Glades Avenue." Signed by both parties and witnessed.

A deed was also introduced in evidence dated January 29, 1917, from the appellant, to Walter W. Corey and wife, recorded May 28, 1917, which called for a lot of ground having a front of one hundred feet "on the south line of Glades Avenue, a private street fifty feet wide, by a depth southwardly of 174 feet and 7 5/8 inches to a private alley fifteen feet wide, the same being east of the property of Heil." This deed was made and filed for record after the commencement of this suit and the filing of the commissioner's report.

There was also offered in evidence a plat of a sewer district, which shows that the strip of land in controversy on the north line of the property of appellant, had been assessed for a sewer. A plat was also introduced in evidence showing an assessment district between Forest and Prather avenues, and an assessment for the paving of Forest Avenue against appellant, including one lot adjacent thereto, the property of Charles P. Heil, and also assessing against her one hundred feet further east to the end of the assessment district, and for the paving of the alley along the rear of said property.

It was admitted that the Assessor of the City of St. Louis had assessed city and state taxes against appellant, including the property as described on the Cozen's survey and the property in controversy, during each year of her ownership...