Gaskins v. Williams
| Decision Date | 01 July 1911 |
| Citation | 139 S.W. 117,235 Mo. 563 |
| Parties | J. W. GASKINS et al. v. IVEY WILLIAMS et al. Appellants |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.
Reversed and remanded (with directions).
G. G Shepard, Sam J. Corbett and Vance J. Higgs for appellant.
(1) The plat shows on its face that it was not a gift to the county of the land in question, but a conditional offer to give to the county, the condition being that the county use the land for court house purposes, that is, place a court house on this land, and until the offer was accepted by the county on the terms on which it was offered, the title did not pass to the county. Landis v. Hamilton, 77 Mo. 555; Bauman v. Boeckler, 119 Mo. 189; Kemper v Collins, 97 Mo. 644; Baker v. Vanderburg, 99 Mo. 378; Miller v. McCaleb, 208 Mo. 562. (2) The owners of the land had the right to name the terms on which they would part with the title, and the fee did not pass until the terms named by them were complied with, which was the county using the property for court house purposes. It was left to the option of the county as to whether it would or would not accept the offer; it chose to reject, and not accept the offer. Baker v. Vanderburg, 99 Mo. 378; Kemper v. Collins, 97 Mo. 644; Campbell v. Kansas City, 102 Mo. 326; Rosenberger v. Miller, 61 Mo.App. 426; Bauman v. Boeckler, 119 Mo. 189. (3) Nothing more than a base, qualified, or conditional fee passed to the county, which was defeated when the county failed to comply with the conditions of the grant. Tebow v. Dougherty, 205 Mo. 315. (4) When the county failed to use the property for the purpose for which it was given, the fee reverted to the donors. Campbell v. Kansas City, 102 Mo. 326; Robbins v. White, 42 So. 841. (5) If the fee simple title vested in the county at the time the plat was filed, then the county had the right to dispose of said property when it thought it was to its interest to do so, and the commissioners deed to these defendants vested the title in them. Sec. 903, R. S. 1899; Simpson v. County, 173 Mo. 421. We do not claim that the title passed to the county at the time the plat was filed, or at any time, but we do claim, that if the title did so pass, then the commissioners deed vested the title in these defendants. (6) Non-user of land given for a certain purpose for the same length of time as would give title by limitation gives the title back to the original grantor. State v. Young, 27 Mo. 259; State v. Culver, 65 Mo. 609.
J. R. Brewer for respondent.
(1) The dedication was a statutory dedication and not a common law dedication and conveyed the whole fee, and there was nothing left in the dedicators to revert to them or their heirs, even if the county seat was afterwards located at Caruthersville. Reid v. Board of Education, 73 Mo. 295; Brown v. Carthage, 128 Mo. 17; Buschman v. St. Louis, 121 Mo. 536. (2) No acceptance by the county was necessary, and the dedication was complete by the recording the plat, and was irrevocable. Reid v. Board of Education, supra; Buschmann v. St. Louis, supra. (3) The dedication of block 29 for court house purposes was a dedication in trust and the county court of Pemiscot county could not lawfully convey or authorize its commissioner to convey this land as by his deed as such commissioner. Regents v. Painter, 102 Mo. 471. (4) The fact that the county of Pemiscot has failed to use said block 29 for a court house does not make the dedication a conditional one or a base fee. Reid v. Board of Education, supra.
In 1895, Granville M. Hayes and other owners of certain lands in Pemiscot county caused said lands to be surveyed and laid off into town lots, establishing the town of Gayoso City, now Hayti, in said county. Said owners caused a plat to be made, designating thereon the streets, alleys, blocks and lots; among others, a block known as Block 29, which said block, as it appeared on said plat, had inscribed thereon the following: "Dedicated to Pemiscot county for court house purposes." The following indorsement was placed on the plat and signed by the owners: This plat was duly acknowledged on the 24th day of January, 1895, before the clerk of the circuit court, and on the next day was filed for record.
It is admitted that at the time this dedication was made the county seat question was in agitation; that it was known that it would have to be changed, but not known where it would be located.
The evidence shows that it was the impression of the owners of this ground that the county seat would be located in the new town of Gayoso City, sought to be established by this dedication, and that block 29 was dedicated to the county for courthouse purposes, in the belief and with the expectation that the county seat would be so located. It appears that some lots were purchased in this new town, and adjacent to block 29, in the belief that the courthouse was to come there. It does not appear that any sales were made upon representations by the dedicators as to the future use of the block. It seems to have been the common impression that the county seat would be located in that town. As a matter of fact, the county seat was not located at Hayti (Gayoso City), but was located at Caruthersville.
On April 1, 1901, the county court of Pemiscot county made an order appointing a commissioner, and directing him to execute a deed to said block 29, and lot 5 in block 43, to the legal heirs of the original dedicators, conveying all the right, title and interest of Pemiscot county therein. This order recited that, "Whereas since the dedication to said county, the county seat thereof has been, by vote regularly had and carried and by legal procedure regularly had, permanently located at Caruthersville, in said county, and the parcels of land cannot be used by said Pemiscot county for the purposes and use for which the same were dedicated by said Granville M. Hayes and others, and the title in equity in and to said land is of right and ought to be in the parties named, or their legal heirs," etc. Pursuant to this order, the commissioner appointed by the court executed his deed to the heirs of G. M. Hayes and the other original owners, relinquishing the land in question. The deed was filed for record on April 13, 1903, and recites substantially the same clause above quoted from the county court's order; but states further that "the purpose for which the same was set apart and dedicated by the grantors aforesaid has been thus and thereby rendered impossible." The record fails to show that any use has been made of this block 29 by anybody, and is very barren of testimony showing what has taken place so far as the settlement of the city of Hayti is concerned. It does show that a few lots were sold, and two or three buildings erected. The above-mentioned order of the county court was made pursuant to a petition filed in that court by the heirs of the original owners. It appears that the city of Hayti subsequently instituted condemnation proceedings against the defendants as owners of this property, and procured judgment, but failing to take the property and pay the compensation awarded, suit was brought by these defendants to divest the title out of the city of Hayti to this block which the city claimed through said condemnation proceedings; that this suit by the heirs was prosecuted to final judgment, and a decree was entered divesting the title out of the city of Hayti and vesting title in the defendants in this suit. It also appears from the original petition filed in this case, and which was put in evidence by the defendants, that these defendants filed a partition suit, and that an order of sale was made; but we infer that that order has never been carried out, and that the partition suit was interrupted and suspended by this present proceeding.
This proceeding was instituted September 20, 1905, by a petition in which the plaintiffs claim an equitable interest in and a right to use said block 29. The petition sets out the dedication referred to above, and alleges that lots had been sold relying upon such dedication; sets out the fact of the making of the commissioner's deed in behalf of the county to the defendants referred to above; sets out the partition suit; charges that block 29 is about to be sold and used for other purposes than that for which it was dedicated, and prays the court to determine the estate, title and interest of the parties respectively in said real estate; to set aside the commissioner's deed aforesaid, and to decree and adjudge that the defendants have no claim or title to said block, other than an interest in common with the public, and that they be debarred from asserting any private right or ownership, and for other and further relief. On December 12 1905, an amended petition was filed by these plaintiffs, in which they state that they sue for themselves and others similarly situated, as tax-paying citizens of Pemiscot county. The amended petition sets out the dedication aforesaid, the order of the county court directing its commissioner to quit-claim the property to defendants, and the making of such deed by the commissioner, charges that the making of said deed was in excess of the power of the county court, and a violation of the trust created by...
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