Drimmel v. Kansas City
| Citation | 168 S.W. 280,180 Mo.App. 339 |
| Parties | IDA DRIMMEL, Respondent, v. KANSAS CITY, Appellant |
| Decision Date | 04 May 1914 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
A. F Evans and F. M. Hayward for appellant.
(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence because there was no evidence that plaintiff fell on a public street. State v Young, 27 Mo. 259; Ely v. St. Louis, 181 Mo 723; Benton v. St. Louis, 217 Mo. 687; Milling Co. v. Riley, 133 Mo. 574; Hemphill v. Morehead, 162 Mo.App. 566; Colton v. Kansas City, 162 Mo.App. 429. (2) The court erred in giving instruction 1 for plaintiff: (a) Because such instruction in respect to the place where plaintiff fell being a public street is not supported by either the pleadings or the proof. Smoot v. Kansas City, 194 Mo. 513; Knight v. Kansas City, 113 Mo.App. 561; Hufft v. Railroad, 222 Mo. 286; Black v. Railway Co., 217 Mo. 672; Bank v. Murdock, 62 Mo. 70; Mansur v. Botts, 80 Mo. 651; Haynes v. Trenton, 108 Mo. 123. (3) Because such instruction fails to tell the jury that defendant was entitled to a reasonable opportunity after knowledge of the defects in the sidewalk in which to repair it. Richardson v. Marceline, 73 Mo.App. 360; Ballard v. Kansas City, 126 Mo.App. 541; Pearce v. Kansas City, 156 Mo.App. 230; Maus v. Springfield, 101 Mo. 613; Badgley v. St. Louis, 149 Mo. 122.
J. K. Stickney, L. A. Laughlin, and Davis & Holmes for respondent.
(1) A clerical error in an instruction readily discovered upon reading it constitutes no ground for reversal. Shortel v. St. Joseph, 104 Mo. 114; Trustees v. Hoffman, 95 Mo.App. 488; Lucas Market Bank v. Goldsall, 8 Mo.App. 595; Lin v. Railroad, 10 Mo.App. 134; Suttie v. Aloe, 39 Mo.App. 38; State v. Meals, 184 Mo. 244; Day v. Dry Goods Co., 114 Mo.App. 479; Packing Co. v. Mertens, 150 Mo.App. 583. (2) Instruction No. 1 failed to tell the jury that defendant was entitled to a reasonable opportunity after knowledge of the defects in the sidewalk in which to repair it. Ford v. Kansas City, 181 Mo. 137; Elliott v. Kansas City, 174 Mo. 554, 559; Wright v. Kansas City, 187 Mo. 678, 693.
A suit against the city for injuries sustained by a fall caused by a defective sidewalk. Plaintiff is a married woman, and, at the time of her fall, was living with her husband and family at 3817 State Line street in Kansas City, Missouri. The line between the states of Kansas and Missouri is in the middle of the street and from this fact comes the name State Line street. Plaintiff lived on the east or Missouri side of said street.
There is no dispute over the fact that plaintiff fell and was injured on a defective plank sidewalk. This sidewalk was in front of plaintiff's residence. There was evidence tending to show that the walk had been in a dilapidated condition for a long time. It had been built more than eight years prior to the injury. One witness testified to its defective condition one month before the accident, another said it had existed for a year and still another said such condition had existed for two years prior to plaintiff's hurt. During the month next preceding the plaintiff's fall, the walk had sunk down on the side next to the property line leaving the walk in a slanting position. Plaintiff had not been out of the house during this month having been confined to her room with an attack of measles.
There was a demurrer to the evidence which the court overruled. The jury awarded $ 1500 and defendant appealed.
The first and principal contention made by defendant is that there was no evidence that the street at the point where plaintiff fell was a public street of the city in the sense that the city was under any obligation to keep it in reasonably safe repair. Stated a little more clearly, the contention is that there is no evidence that the city had accepted the street in controversy or that it had exercised such jurisdiction and control over it as imposed upon the city the duty of keeping it in repair and rendering it liable for a failure so to do. The evidence did not show just how State Line street was originally established. There was no proof of condemnation nor of a statutory dedication, nor was the evidence sufficient to establish the street by prescription because those who testified were not acquainted with the street long enough prior to plaintiff's fall, their knowledge lacking a few months of covering the necessary ten years user by the public. Defendant contends that the only method of creating a street are by condemnation, dedication by deed or under the statute, and by prescription. And that since there is no evidence of the first two methods, no street was shown to have been established as the time covered was not long enough to create one by prescription. It is true mere user alone for any period short of ten years will not create a street by prescription. But we do not agree with defendant that the above enumerated methods are the only ways in which an owner of land may dedicate it to public use as a street. He may do so by a valid common law dedication, that is, by acts in pais which evince an intention on his part to dedicate. [Meiners v. City of St. Louis, 130 Mo. 274, 32 S.W. 637.] No particular formality is necessary; it may be made by any act of the owner showing an intention to dedicate which is the vital principle in dedication. Time is not an indispensable element because if the dedication is accepted and used by the public in the manner intended the dedication is complete, precluding the owner from revoking the dedication. Whether a common law dedication has been made is therefore a conclusion of fact to be drawn by the jury from the circumstances of each particular case. [9 Am. & Eng. Ency. of Law (2 Ed.), 34.] The throwing open of land to public use as a street, without other formality is sufficient to establish the fact of dedication to the public, and if individuals, in consequence of this act, become interested to have it continue so, as by purchasing property abutting thereon, the owner cannot resume it. [Abbott v. Mills, 3 Vt. 521.] All that is required is the assent of the owner and the use of the premises for the purposes intended by the appropriation; the law creates out of the owner's act, in such case, an estoppel in pais and precludes him from revoking the dedication. [Morgan v. Railroad, 96 U.S. 716, 24 L.Ed. 743.] The difference between prescription and common law dedication lies in the ingredient of time. To establish dedication by prescription in this state, user for ten years must be shown and nothing short of that will suffice; but a valid common law dedication may be shown by an act of dedication and of the animus dedicandi without reference to the period of use. [22 Am. & Eng. Ency. of Law (2 Ed.), 1186. For example, opening on the ground a street or highway and selling lots fronting upon such street and which are accessible only thereover will constitute a common law dedication of the land covered by the highway to public use, irrevocable so far as the purchasers of the lots are concerned and also irrevocable so far as the general public is concerned because the rights acquired by third persons under such a common law dedication will operate in favor of the public as well as of such lot owners. [Heitz v. City of St. Louis, 110 Mo. 618, 19 S.W. 735; Buschmann v. City of St. Louis, 121 Mo. 523, 26 S.W. 687.]
Of course this will not bind the city to accept it as one of the streets of the city and become responsible for its maintenance. That burden is not imposed upon the city until it has in some way, either expressly or by implication, recognized it as a city street and invited the public to use it as such. We do not mean to intimate that the city can be held liable in the absence of such evidence. What we have reference to here is that where there is evidence from which a valid common law dedication of a street can be reasonably inferred, then, if there is also evidence from which the city's recognition of that street as a city street and its invitation to the public to use it as such can be implied, the mere fact that such common law dedication may not have existed for ten years will not relieve the city. Of course unless there is something to show an intent on the part of the owner of the street to make a valid common law dedication thereof, there must be user by the public for ten years, with his knowledge, to supply the lack of such evidence. "But when the intent to dedicate clearly appears, acceptance may be established by user for a period of less than ten years depending upon the purpose and extent for which used." [Milling Co. v. Riley, 133 Mo. 574, 34 S.W. 835.] It is true, in the case just cited a plat had been filed, but as Lloyd had no title to the property, the plat amounted to nothing. The dedication was upheld as a common law dedication.
A way in a city may become a public street by a valid common law dedication, but before the city can be charged with the duty of maintaining it in repair there must be some proof that the city has recognized or accepted it as a city street. [Meiners v. City of St. Louis, 130 Mo. 274, 32 S.W 637; Milling Co. v. Riley, 133 Mo. 574, 34 S.W. 835.] The question is, in such case, has the city manifested a willingness to receive the street as a city street over which it invites the public, either expressly or by implication, to travel. If it has then the city by so doing assumes that relation to the street by virtue of which the law will impose on the city the burden of keeping such street in reasonably safe repair. [Robinson v. Kansas City, decided by this court, April 6, 1914, and not yet...
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