Evans v. Andres

• Decision Date: 01 September 1931
• Parties: PEARL E. EVANS, APPELLANT, v. J. TILDEN ANDRES AND GUSSIE ANDRES, RESPONDENTS
• Court: Missouri Court of Appeals

42 S.W.2d 32

226 Mo.App. 63

PEARL E. EVANS, APPELLANT, v. J. TILDEN ANDRES AND GUSSIE ANDRES, RESPONDENTS

Court of Appeals of Missouri, Springfield

September 1, 1931

Appeal from the Phelps County Circuit Court.--Hon. J. H. Bowron Judge.

REVERSED AND REMANDED (with directions).

Watson & Allison and Williams, Henson & Stone for appellants.

(1) The filing and recording in 1867 by Wm. F. Greely of the acknowledged plat of Jerome, Phelps county, Missouri, was a valid statutory dedication to the public use of all streets alleys, and commons designated thereon, and irrevocably vested the feesimple title thereto in the county of Phelps without assent thereto or acceptance thereof by the public or said county. Gen. Stat. 1865, p. 247, secs. 1-2, now (as amended), secs. 11180-11181, R. S. 1929; City of Laddonia v. Day, 265 Mo. 383; Hill v. Hopson, 150 Mo 611; Reid v. Board of Education, 73 Mo. 295, 304; Buschman v. City of St. Louis, 121 Mo. 523, 536; Brown v. City of Carthage, 128 Mo. 10, 17; Town of Otterville v. Bente, 240 Mo. 291, 295, 296; Guitar v. St. Clair, 238 Mo. 617, 625; Bell et al. v. Walkley, 27 S.W.2d 456, 458 (Mo. App., 1930); Hatton v. City of St. Louis, 264 Mo. 634, 643. (2) Being courts of limited jurisdiction, county courts have only such authority as is expressly granted them by statute, and their acts, outside of and beyond that grant, are null and void, especially when acting on matters affecting private property rights. Spurgeon v. Hennessey, 32 Mo.App. 87; Robinson v. Korns, 250 Mo. 670; Jefferson County v. Cowan, 54 Mo. 234; Whitley v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Daugherty v. Brown, 91 Mo. 26; Fisher v. Davis, 27 Mo.App. 321; Zeibold v. Foster, 118 Mo. 349; Tummons v. Stokes, 274 S.W. 528; Doddridge v. Patterson, 222 Mo. 146; Railroad v. Young, 96 Mo. 29; Neil v. Independent Realty Co., 298 S.W. 363; Thomas v. Hunt, 134 Mo. 399; Williams v. Kirby, 169 Mo. 622; Rousey v. Wood, 57 Mo.App. 650. (3) The order of said county court of November 8, 1877, was and is of no force and effect, since compliance with the jurisdictional statutory provisions of sections 1, 2, 3, 4 and 6, Laws 1865, pp. 200-202, R. S. 1929, secs. 7165 to 7169, inc., does not appear on the face of the order and record of the proceedings of said county court on said date. Spurgeon v. Hennessey, 32 Mo.App. 87; Robinson v. Korns, 250 Mo. 670; Jefferson County v. Cowan, 54 Mo. 234; Whitley v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Daugherty v. Brown, 91 Mo. 26; Fisher v. Davis, 27 Mo.App. 321; Ziebold v. Foster, 118 Mo. 349; Tummons v. Stokes, 274 S.W. 528; Doddridge v. Patterson, 222 Mo. 146; Railroad v. Young, 96 Mo. 29; Neal v. Independent Realty Co., 298 S.W. 363; Thomas v. Hunt, 134 Mo. 399; Williams v. Kirby, 169 Mo. 622; Rousey v. Wood, 57 Mo.App. 650. (a) The county court order of November 8, 1877, does not even purport to vacate any streets or alleys, or to do more than order the description thereafter of the property included in the plat of 1867, to be made by "metes and bounds, section lines, etc." (4) Even though we admit for the sake of argument, that the Phelps county court was vested with the power to vacate the streets designated on the plat, and that said streets were vacated by its order of November 8, 1877, yet the sale of lots thereafter according and by reference to said plat by William F. Greeley, the common source of title, and by the ancestors in title of both plaintiffs and defendants, and the purchase and improvement by plaintiff and others of lots so designated and platted, constitute a valid re-dedication of the streets, alleys, and commons, and estop defendants to deny the same. City of Laddonia v. Day, 265 Mo. 383, 391-394; City of Caruthersville v. Huffman, 262 Mo. 367, 375-376; Longworth v. Sedevic, 165 Mo. 221, 230; Buschman v. City of St. Louis, 121 Mo. 523, 536; Railroad v. Baker et al., 183 Mo. 312, 322; Guitar v. St. Clair, 238 Mo. 617, 625; City of Hannibal v. Draper, 15 Mo. 634, 638-640; Minium v. Solel, 183 S.W. 1037, 1040 (Mo. Sup., 1916). (a) "The sale and conveyance of the lots in a town according to its plat carry with them a grant or covenant that the streets indicated on the plat shall be forever open to the use of the public." Heitz v. City of St. Louis, 110 Mo. 618, 624; City of St. Louis v. Clegg, 289 Mo. 321, 331-332; Drimmel v. Kansas City, 180 Mo.App. 339, 344-345; Moses v. St. Louis Sectional Dock Co., 84 Mo. 242, 247. (5) The Statute of Limitations does not apply or extend to any lands given or granted for any public use; hence, defendants can acquire and have acquired no right, title or interest in and to Elm and Third Streets by reason of their alleged adverse possession, or the alleged nonuser of said streets. General Statutes 1865, p. 746; now, section 859, R. S. 1929; Hatton v. City of St. Louis, 264 Mo. 634, 645; Brown v. City of Carthage, 128 Mo. 10, 17; City of St. Louis v. Railroad, 114 Mo. 13, 24; Williams v. City of St. Louis, 120 Mo. 403, 409; City of Columbia v. Bright, 179 Mo. 441; State ex rel. Hines v. Gravel Road Co., 207 Mo. 85, 106; City of Caruthersville v. Huffman, 262 Mo. 367, 374; City of Hardin v. Ferguson, 271 Mo. 410, 415-416; Baughman v. Faulwell, 156 Mo.App. 227, 229; Kansas City Milling Co. v. Riley, 110 Mo. 618, 626. (6) Plaintiff is entitled to equitable relief in the form of a decree permanently enjoining defendants from fencing, obstructing or closing Elm or Third Streets. State ex rel. v. Feitz, 172 Mo.App. 456, 460-462; Longworth v. Sedevic, 165 Mo. 221, 231; Kansas City Milling Co. v. Riley, 133 Mo. 574, 586; Heitz v. City of St. Louis, 110 Mo. 618, 626.

W. D. Jones and Lorts & Breuer for respondents.

(1) In an action to enjoin the closing of an alleged public highway the mere filing and recording of a plat showing streets in an unincorporated village and far removed from any incorporated town is not effective to establish a public highway, unless the filing of such plat was followed by some act on the part of the county officials to put the proposed highway in condition for travel or otherwise recognized it as a highway or there was a user by the public. In the case at bar where the evidence showed and the court found: (1) That the road in question was never worked by citizens or road overseers as a public highway, or any other way; (2) That there never was expended any public labor or money thereon; (3) That it was never at any time recognized as a public highway by the county officials or road overseers; (4) That the public never at any time used the road in question as a public highway; there was no public highway and an injunction will not lie to restrain an obstruction. Proctor v. Proctor, 4 S.W.2d 882, and cases cited. (2) If there ever existed the right to have the purported highway opened and established as such it had long been lost by abandonment and nonuser before the filing of this proceeding. "Non-user by the public for a period of ten years continuously of any public road shall be deemed an abandonment of the same." Sec. 7839, R. S. 1929. The section quoted, "shows that it is applicable to the abandonment of any public road by non-user for ten years continuously." Johnson v. Rasmus, 237 Mo. 587, and cases cited. The rule that the Statute of Limitations does not run against the State is not applicable here, as the right to the road, if any, was lost by the public, by non-user and abandonment, and upon that theory the right to a road, if it ever existed, has failed, and not upon the theory that defendant has acquired title by limitations against the State. In Johnson v. Rasmus, supra, the court said: "The laws of the right of public road resulting from abandonment or vacation by the public accrues from the acts of the parties entitled to the highway and not from the adverse or hostile possession of others; hence there is no room for the application of the rule the title cannot be builded against the State upon the Statute of Limitations." In the Johnson case, supra, the court further held: "Therefore even if it could be held that the right of the public to abandon a road was governed by the Statute of Limitations this would no longer be the case after the adoption of the Act of 1887." "The only limitation upon the abandonment of an established public road is that it must not be done to the injury of the vested rights of abutting owners or persons similarly situated." On this point it has been said: "But where no such rights are involved the public may either abandon or vacate a highway; and where such rights do exist they may also be abandoned by those entitled to assert them. . . It is proper therefore to state that a highway may cease to exist either by abandonment or by vacation according to law." Elliott on Roads and Streets (3) sec. 1172. This doctrine was approved and adopted by the court as the rule in Missouri in Johnson v. Rasmus, 237 Mo. 590. (3) Under the law in force and effect during the year of 1877, long prior thereto and since, the county court of Phelps county was vested with full power and authority upon a proper petition and proof to vacate the purported streets in controversy. And the county court did enter such order in accordance with the provision of the law and any force and effect, with respect to the purported street, which may have been created by the filing of a plat of the subdivision, was thereafter nullified. Sec. 50, page 1322, R. S. 1879. Abs. of Record 79. The county court in 1877, was vested with authority to enter the vacating order and same is not open to collateral attack. McKenzie v. Donnell, 151 Mo. 450; Macey v. Stark, 116 Mo. 42, and cases cited. The county court of Phelps county has jurisdiction both over the parties and the subject-matter and the order...