City of St. Louis v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 28 February 1913 |
| Citation | 154 S.W. 55,248 Mo. 10 |
| Parties | CITY OF ST. LOUIS v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Affirmed.
R. T Railey and James F. Green for appellants.
(1) In ejectment plaintiff must recover on the strength of his own title. St. Louis v. Blast Furnace Co., 235 Mo. 1; Ables v. Webb, 186 Mo. 247; Mann v Elliott, 99 Mo. 616; Mather v. Walsh, 107 Mo. 121; West v. Bretelle, 115 Mo. 653; Kingman v. Sievers, 143 Mo. 519; Large v. Fisher, 49 Mo. 307. (2) Defendant railway, as the riparian owner of blocks 66 and 77, was entitled to the accretions, if any, thereto. City v. Railway, 114 Mo. 21; St. Louis v. Blast Furnace Co., 235 Mo. 1. (3) The contract between Carondelet and Ivory and also ordinance No. 610 were void, and transferred no title to the plaintiff. Wilkinson v. Dock Co., 102 Mo. 140; City v. Glasgow, 15 Mo.App. 122, 87 Mo. 678; Mathews v. Alexandria, 68 Mo. 115; Schoppe v. St. Louis, 117 Mo. 136; Cole v. Lagrange, 113 U.S. 6; Glaessner v. Brewing Assn., 100 Mo. 515; Knapp, Stout & Co. v. Railroad, 126 Mo. 36; State ex rel. v. Murphy, 134 Mo. 564; City v. Carpenter, 13 Cal. 545. (4) The evidence also establishes title to the property in controversy in the defendant railway by adverse possession. Hendrickson v. Grable, 157 Mo. 42; School v. Goerges, 50 Mo. 194; Dice v. Hamilton, 178 Mo. 89; Coleman v. Drane, 116 Mo. 389; Ins. Co. v. St. Louis, 98 Mo. 424.
Lambert E. Walther and Henry W. Allen for respondent.
(1) An action for the recovery of possession of land may be maintained against any person not having a better title thereto, in all cases where the plaintiff claims possession thereof under or by virtue of a confirmation made under the laws of the United States. R.S. 1909, sec. 2383; Janis v. Gurno, 4 Mo. 458. (2) The Act of June 13, 1812 (2 U.S. Stat. at Large, 748), and the Supplementary Acts of May 26, 1824 (4 U.S. Stat. at Large, 65), and of January 27, 1831 (U.S. Stat. at Large, 435), operated ex proprio vigore to divest the title of the land designated therein out of the United States and to vest it in the inhabitants of the village of Carondelet. Carondelet v. St. Louis, 25 Mo. 459; Vasseur v. Benton, 1 Mo. 296; Janis v. Gurno, 4 Mo. 458; Lawless v. Newman, 5 Mo. 236; Gurno v. Janis, 6 Mo. 330; Ashby v. Cramer, 7 Mo. 98; Hammond v. Schools, 8 Mo. 65; Dent v. Bingham, 8 Mo. 579; Trotter v. Schools, 9 Mo. 69; Montgomery v. Landusky, 9 Mo. 714; Page v. Scheibel, 11 Mo. 167; Harrison v. Page, 16 Mo. 182; Gamache v. Piquignot, 17 Mo. 310; Soulard v. Clark, 19 Mo. 582; Carondelet v. McPherson, 20 Mo. 201; Milburn v. Hortiz, 23 Mo. 532; Vasquez v. Ewing, 24 Mo. 31; Funkhouser v. Langkoff, 26 Mo. 453; Primm v. Harne, 27 Mo. 205; Milburn v. Hardy, 28 Mo. 514; Dent v. Sigerson, 29 Mo. 489; Carondelet v. St. Louis, 29 Mo. 527; Fine v. Public Schools, 30 Mo. 166; Barry v. Blumenthal, 32 Mo. 29; Langlois v. Crawford, 59 Mo. 456; Glasgow v. Baker, 85 Mo. 559, 128 U.S. 560; St. Louis v. Railroad, 114 Mo. 13; Strother v. Lucas, 12 Peters, 412; LeBois v. Brammell, 4 How. 457; Guitard v. Stoddard, 16 How. 494; Savignac v. Garrison, 59 U.S. 136; Glasgow v. Hortiz, 66 U.S. 595; Carondelet v. St. Louis, 66 U.S. 179; Dent v. Emmeger, 81 U.S. 308; Ryan v. Carter, 93 U.S. 78. (3) Brown's survey of the commons of Carondelet was authorized and approved. Dent v. Sigerson, 29 Mo. 489. (4) The city of St. Louis has succeeded to Carondelet's title. Laws 1870, p. 458; Scheme and Charter of St. Louis. (5) A lessee cannot dispute his lessor's title. Walker v. Harper, 33 Mo. 592; Stagg v. Tanning Co., 56 Mo. 317; Bank v. Clavin, 60 Mo. 559; Pierce v. Rollins, 60 Mo.App. 497.
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. These 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 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, sec. 7, chap. 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, sec. 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 ten 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 out boundaries 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 contentions 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. Railroad, 114 Mo. 13 (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 St." 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. Railroad, supra, 114 Mo. 22.] 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 southwest 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...
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