Hand v. City of St. Louis

• Decision Date: 12 November 1900
• Citation: 158 Mo. 204,59 S.W. 92
• Parties: HAND v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

59 S.W. 92

158 Mo. 204

HAND v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

CONVEYANCE FOR SPECIAL PURPOSE — REVERSION — PLEADING — CONCLUSION — ACQUIESCENCE.

1. Where a lot is conveyed absolutely to a city for the purpose of a public market, without any reversion or re-entry being provided for, it does not revert though the city abandons such use, and uses it for other purposes.

2. That it is now impossible to maintain a market house on a lot, for which purpose it was conveyed to a city, is but a conclusion of the pleader, in suit to devest grantee because of diversion from use intended; it being alleged merely that in consequence of the act of the city in building an engine house on the lot, and its location, and the development of the city, it is now impossible to use it for a market.

3. One who conveys a lot to a city for the purpose of a public market will not be heard to complain of the use thereof by the city, without explanation of his acquiescence; the city having built an engine house thereon and used it for that purpose for 25 years without any complaint.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Suit by Rose A. S. Hand against the city of St. Louis. Judgment for defendant. Plaintiff appeals. Affirmed.

Lyon & Swarts and Wm. H. O'Brien, for appellant. B. Schnurmacher and Chas. C. Allen, for respondent.

VALLIANT, J.

Plaintiff brings this suit in equity to devest the defendant city of the title which it holds to a piece of land conveyed to it by plaintiff's father, now deceased, for a certain public use, and to vest the same in plaintiff, as her father's devisee, on the ground that the city has diverted the property from the use for which it was conveyed, and applied it to a different purpose. The defendant demurred to the plaintiff's petition, the demurrer was sustained, and, plaintiff declining to plead further, final judgment was rendered for defendant, and the plaintiff appeals.

The essential averments of the petition are to the effect that, in 1860, Elihu H. Shepard, plaintiff's father, by deed conveyed to the city of St. Louis a piece of land, described in the petition, "for the purpose of a public market, to be called `Shepard's Free Market,' in which all persons having wholesale provisions for sale should be licensed to use and occupy stands free or at nominal rent, and it was expressed in the deed that, if within one year from its date the city should not erect a market house on the lot, then any responsible company might do so, upon paying not more than one dollar a year, and maintain a market house thereon upon like conditions; that the city accepted the deed, took possession of the lot, erected a market house thereon as required, and maintained the same for about ten years, but after that period ceased to use it for a market house, and instead erected an engine house for use of the fire department, and has ever since used it for such engine house only; that, owing to changes in the locality and development of the city, it has now become impossible to use the lot for the purposes designed by the grantor and expressed in the deed; that Elihu H. Shepard died in 1876 leaving a will under which, as matters now stand, the plaintiff is sole devisee." The conclusion of the pleader is that, the premises considered, the title to the lot, in equity, should revert to the plaintiff as the devisee under her father's will. The prayer is that the title be devested out of the city, and vested in the plaintiff; that the city be enjoined from using the lot for the purpose it is using it, and be required to remove the engine house therefrom, etc.

The only question presented by the record is, should the demurrer have been sustained? The learned counsel for appellant very clearly demonstrates that, if the plaintiff has any rights in the premises at all, they are such as cognizable only in a court of equity. She has no legal title to the land, and therefore no standing in a court of law. The appellant's position is thus stated in her brief: "By the deed of conveyance and dedication, the legal fee in the land passed to the respondent. There was no reversion or re-entry provided for in the deed. The respondent could not lawfully divert the use of the premises from market-house purposes to an engine house for the use of the fire department, and therefore the appellant has the right to invoke the aid of a court of equity to restrain the respondent from making any other use of the land than that for which it had been conveyed and dedicated, and to compel the execution of the trust, if it were possible to execute the same. If, upon the facts before the court, it has become impossible to execute the use, then it was for a court of equity to declare such impossibility, and at the same time a reversion of the title to the appellant, Mrs. Hand, as devisee of the original donor, and to devest the title out of the respondent, and vest the same in her."

It will not be disputed that one to whom property has been conveyed in trust for a particular use cannot lawfully devest it to a different purpose, and, if he attempts to do so, a court of equity, at the suit of one authorized to sue, will interpose and prevent the misuse and abuse of the trust. But the further proposition, that property that has been so conveyed absolutely, without provision for reversion, will revert when the trustee abandons the prescribed purpose, and attempts to divert it to another use, is one to which we cannot assent. Authorities are cited by the learned counsel which sustain the position that where an easement has been created an abandonment by the grantee of the use will have the effect to restore the property to the grantor freed from the easement, and where title has been conveyed on condition it will revert when the condition fails. But, when the title is conveyed absolutely in trust for a given purpose, it is not subject to recall by the grantor, and the only power a court of equity has...