Ginter v. City of Webster Groves

• Decision Date: 11 September 1961
• Docket Number: No. 48511,No. 2,48511,2
• Citation: Ginter v. City of Webster Groves, 349 S.W.2d 895 (Mo. 1961)
• Parties: Earl A. GINTER, D. H. Griffin, and Arthur A. Storck, Trustees of Webster Meadows Subdivision, Appellants, v. CITY OF WEBSTER GROVES, a Municipal Corporation, Respondent
• Court: Missouri Supreme Court

Page 895

349 S.W.2d 895

Earl A. GINTER, D. H. Griffin, and Arthur A. StorckTrustees of Webster Meadows Subdivision, Appellants, v.CITY OF WEBSTER GROVES, a Municipal Corporation, Respondent.

No. 48511.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1961.

Rehearing Denied and Opinion Modified on Court's Own Motion

Oct. 9, 1961.

Marvin E. Boisseau, St. Louis, for appellants.

H. Jackson Daniel, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for respondent.

STORCKMAN, Judge.

This is a suit for a declaratory judgment, the purpose of which is to determine whether certain streets in Webster Meadows, a subdivision in the City of Webster Groves, St. Louis County have been dedicated to public use.The plaintiffs are the trustees of the subdivision and each owns a lot in the subdivision.The defendant is a municipal corporation organized and existing as a constitutional charter city.The trial court, sitting without a jury, found that the streets had been dedicated to the public use and were open and public streets within the City of Webster Groves.The plaintiffs have appealed.The parties will be referred to as they were designated in the trial court.The principal issue here, as it was in the trial court, is whether the dedication of the streets by the developer of the subdivision was accepted by the City.

The facts are shown chiefly by a plat of the subdivision and written exhibits.The plat, plaintiffs' Exhibit 1, designates 20 residential building lots, two streets, Worthing Drive and Rock Hill Road, each 50 feet wide, and a strip of land ten feet in width for the widening of Old Watson Road.The certificate on the plat executed and sworn to by Building For Christ, Inc., a corporation, the owner of the subdivision, under date of August 3, 1954, reads as follows: 'The undersigned owners of the tract of land above platted and described in the surveyors certificate have caused the same to be subdivided in the manner shown on the above plat which subdivision shall hereafter be known as 'Webster Meadows'.

'The building lines shown on the above plat are hereby established.The easements shown on the above plat are hereby dedicated to the City of Webster Groves for sewers and public utilities.Rock Hill Road, 50' wide, Worthing Drive, 50' W, and the 10' wide strip for widening along the east line of Old Watson Road, for better identification shown etched on the above plat, are hereby dedicated to pulic use forever.

'All of the lots in the above subdivision shall be sold subject to the easements shown on the above plat and subject to the conditions, restrictions, covenants and agreements contained in a declaration of restrictions filed for record on even date with this instrument.'

The certificate of the city clerk of Webster Groves, appearing on the plat and dated December 3, 1954, states that: '* * * the above plat of 'Webster Meadows' was approved by the City Council of the City of Webster Groves, Missouri, by OrdinanceNo. 5843, approved the 2nd day of Dec. 1954; the City reserving the right to withold [sic] acceptance of streets indicated on this plat until same have been approved by its City Engineer.'

The Ordinance, No. 5843, plaintiffs' Exhibit 2, approved the plat of the subdivision and concluded with this proviso: '* * * provided, however, that nothing in this ordinance contained shall be construed or interpreted as an acceptance by the City of the streets or public ways dedicated thereon to public use, the City expressly reserving the right to withhold such acceptance until the improvement thereof is satisfactory to the City Engineer.'

The plat of the subdivision as above described and a Trust Agreement and Indenture of Restrictions, plaintiffs' Exhibit 3, were both recorded on March 7, 1955.The Indenture, recorded immediately after the plat, was executed by the owner of the subdivision and the first board of trustees consisting of three members.The plaintiffs contend that the plat and the Indenture are 'inconsistent and contradictory' in that the plat purports to dedicate the streets and the Indenture indicates that the streets are to be held in trust by the trustees for the sole use and benefit of the lot owners.Two provisions are chiefly relied on.One is this recital: 'Whereas, it is the desire and intention of the parties hereto that the various lots in said Subdivision as shown by said plat shall be restricted to the uses and purposes as hereinafter set forth, and that parks and streets, as shown by the said plat and by whatever names called, shall be reserved for the exclusive use and benefit of the owners of lots in said Subdivision, their heirs and assigns, subject to the rights, privileges, exceptions, limitations, restrictions, protection and management thereof, as hereinafter provided, and subject to existing easements; * * *.'The other is paragraph 1 of the Indenture which is as follows: 'The areas delineated and set apart as parks or streets on the record plat are to be held in trust by the Trustees for the exclusive use and benefit of all the lot owners in this Subdivision, * * *.'The Indenture refers to the plat and incorporates it in this manner: 'Whereas, the Owner has caused said tract of land to be platted as a subdivision under the name of Webster Meadows and has caused a plat thereof to be made, approved and recorded in the office of the Recorder of Deeds for St. Louis County, Missouri, * * * which plat is hereby referred to and made a part hereof; * * *.'

The subdivision was developed and private residences were built on all the lots.Thereafter, on March 19, 1958, the trustees filed with the defendant's City Manager a written instrument entitled 'Revocation Of Purported Dedication Of Streets In Webster Meadows Subdivision', which after certain recitals concluded: 'Now Therefore, we, the undersigned, the duly elected, qualified and acting Trustees, under the provisions of the 'Trust Agreement and Indenture of Restrictions' concerning the said Subdivision above referred to, hereby revoke, cancel and annul the alleged or purported dedication of the above named streets in said Subdivision, and withdraw any such purported dedication or offer of dedication to public use; and declare that hereafter we, and our successors will hold said streets in trust for the exclusive use and benefit of the lot owners of said Subdivision, as provided in the 'Trust Agreement and Indenture of Restrictions' applicable thereto.'

Plaintiffs also introduced in evidence a written agreement (Exhibit 5) dated December 30, 1954, in the form of an earnest money contract for the purchase of LotNo. 2 of the subdivision by S. Terrill Judd and his wife from Building For Christ, Inc., the owner of the subdivision.The contract called for the erection of a residence thereon according to plans and specifications.There was testimony that Mr. Judd bought the lot and was 'living in that place', but the evidence does not show when the residence was erected or that Mr. Judd has made an adverse claim to the land adjacent to his lot 'to the center of' Worthing Drive although he was one of the signers of a petition, defendant's Exhibit A, signed by 18 out of 20 lot owners, requesting the City to 'formally vacate' the dedication of the streets so that 'the care and maintenance thereof may be turned over to the property owners of the subdivision.'The date of the petition or its filing is not shown.The plaintiffs contend Mr. Judd became the equitable owner of Lot 2 prior to the recording of the plat.The earnest money contract for the Judd lot was also dated prior to recording the Indenture of Restrictions from which the trustees derive any rights they have.There is no showing whether or not Mr. Judd and his wife acknowledge themselves to be bound by any terms of the Indenture.

The petition of the trustees to vacate the streets was rejected on March 31, 1958, by the City Plan Commission.By OrdinanceNo. 5975, passed and approved on May 27, 1958, the City formally accepted the 'statutorily dedicated streets'.The defendant's evidence tended to prove that the City on January 16, 1958, filled cracks that had developed in both Worthing Drive and Rock Hill Road.There was also evidence taken subject to the plaintiffs' objection that on February 27, 1959, after suit was filed the defendant's street department washed mud off the streets in question, picked up gravel and cleaned the intersection.The trustees did nothing by way of maintaining the streets; they contended maintenance was not needed during the time in question since the streets were new.The evidence will be further discussed during the course of the opinion.

The appeal was first taken to the St. Louis Court of Appeals where the respondent questioned the jurisdiction and the appeal was transferred to this court.Ginter v. City of Webster Groves, Mo.App., 338 S.W.2d 371.Since the plaintiffs seek a judgment declaring that they are the exclusive owners of the streets in trust for the lot owners of the subdivision, while the defendant claims that the streets have been dedicated to public use, and the judgment is responsive to this issue, title to real estate is directly involved thereby vesting jurisdiction of the appeal in this court.Art. V, Sec. 3, Constitution of Missouri, 1945, V.A.M.S.;Billings v. Paine, Mo., 319 S.W.2d 653, 657;Dowd v. Lake Sites, Inc., 365 Mo. 83, 276 S.W.2d 108, 109;Cantrell v. City of Caruthersville, Mo., 267 S.W.2d 646, 648.

The plaintiffs' first contention is that the streets in question were never dedicated to public use because the plat and the owner's declarations thereon constituted an offer only which was withdrawn or revoked before it was accepted by the City.The defendant counters with the contention that the owner of the subdivision had the power to dedicate the streets and that the dedication was legally sufficient both under the statutes and under the rules of common law.

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