Hayes v. Kansas City
| Decision Date | 19 June 1922 |
| Citation | 242 S.W. 411,294 Mo. 655 |
| Parties | LELIA L. HAYES et al., Appellants, v. KANSAS CITY, THOMAS PHILLIPS et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.
Reversed and remanded.
Hardin B. Manard, Frank P. Walsh and James P. Aylward for appellants.
(1) The court erred in finding and decreeing that the alleged Baltimore Avenue was, and still is, a public street in Kansas City, and that appellants have no rights in the same, except such as are subject to the easement of the public. (a) Because said alleged street was never condemned as such, used as such, or dedicated to public use as a street. Laws 1875 p. 196, sec. 2; 28 Cyc. 605; St. Louis v. St. Louis University, 88 Mo. 155. (b) Because Kansas Cty had no jurisdiction or authority to accept a dedication thereof, or to control, improve or maintain said alleged street, and the attempted dedication thereof was invalid. St. Louis v. St Louis University, supra; Dillon on Municipal Corporations (5 Ed.), sec. 980; Riley v. City of Rochester, 9 N.Y 64; Gibson v. Village of Massena, 178 N.Y.S. 851; Forsythe v. Hammond, 142 Ind. 505, 522; Jackson v. Cory, 8 Johns, (N.Y.) 385, 388; Vaughn v. Village of Greencastle, 104 Mo.App. 210; Stealey v. Kansas City, 179 Mo. 400; Sec. 6570, R. S. 1879, and amendment Laws 1887, p. 227; Sec. 9284, R. S. 1919; 13 Cyc. 458, 459, 461; 18 C. J. 72; 13 Cyc. 475; 18 C. J. 67. (c) Because at the time of the attempted platting and dedication, said alleged street was outside the territorial limits of said city and not contiguous thereto. (d) Because the town of Westport was at said time between the said property and the limits of said city. (e) Because the plat of Bismark Place, whereby said street was attempted to be dedicated was never approved by ordinance of the Common Council of Kansas City. (f) Because said alleged street was never a public street, highway or roadway of any kind, and even if it was ever such, it was a county highway or road, and was abandoned as such by Jackson County, long prior to the incorporation of said street within the thereafter extended limits of Kansas City. Sec. 7847, R. S. 1889; Sec. 10446, R. S. 1909; Payne v. Road Improvement District, 216 S.W. 1046; Sec. 9283, R. S. 1919. (2) There never was any dedication to Jackson County. Granite Bituminous Pav. Co. v. McMann, 144 Mo.App. 609. (a) The county was not named as grantee, and (b) the county was not a corporation or a natural person. Dillon on Municipal Corporations (5 Ed.) sec. 1070. (b) Jackson County could not hold said property as trustee for Kansas City. Sec. 9287, R. S. 1919. (3) There was no dedication by user or common law. Carpenter v. St. Joseph, 263 Mo. 715; State v. DeVall, 157 Mo.App. 587. (4) If Baltimore Avenue ever was dedicated as a county highway, it was abandoned by the county and reverted to the owners of the lots abutting on its alleged way. Sec. 7847, R. S. 1889; Sec. 10446, R. S. 1909; Johnson v. Rasmus, 237 Mo. 586, 590 to 594; State v. DeVall, 157 Mo.App. 588; St. Joseph v. Terminal Ry. Co., 268 Mo. 47, 59; Campbell v. City, 102 Mo. 345; City v. Smith, 238 Mo. 328, 336; Excelsior Brick Co. v. Village Haverstraw, 142 N.Y. 146; Ansby v. Hinde, 48 N.Y. 57; 28 Cyc. 834. (5) Kansas City could acquire no greater title than Jackson County had. Duckworth v. Springfield, 184 S.W. 476. (6) The court erred in admitting over the objection of the appellants evidence relative to the method of operation of appellants' business on said premises, as said evidence did not constitute any defense to said proceeding. Smith v. Sedalia, 152 Mo. 283, 301; State v. Springfield Gas & Electric Company, 204 S.W. 944; 29 Cyc. 1152. (7) The decree of the trial court is in violation of Sections 4, 20, 21 and 30, of Article II, Mo. Constitution. Barber Asphalt Paving Co. v. Ridge, 169 Mo. 384; Holmes v Kansas City, 209 Mo. 513; Rourke v. Holmes Street Ry. Co., 221 Mo. 46; Gorman v. Railroad, 255 Mo. 483; Carpenter v. St. Joseph, 263 Mo. 718; City of St. Louis v. Railway, 211 S.W. 672; St. Louis v. Brenner, 223, S.W. 108.
E. E. Aleshire and Edwin C. Meservey for respondents.
(1) The dedication of the land in controversy to the public was valid. Sec. 6559, R. S. 1879; Laws 1887, p. 228; R. S. 1879, sec. 6573. From Section 6573 above it will appear that the title in fee to the real estate in controversy, for the use of the public, was vested in Jackson County, because the land in controversy was at that time outside of the limits of Kansas City. Town of Cameron v. Stephenson, 69 Mo. 378. (2) A valid statutory dedication operates to vest the fee and dispenses with the necessity of an acceptance on the part of the public. Laddonia v. Day, 265 Mo. 390; Otterville v. Bente, 240 Mo. 291; Hill v. Hopson, 150 Mo.App. 611; Reid v. Board of Education, 73 Mo. 295. When the plat is executed and filed the title vests in the county by operation of the statute, and not by any act of the trustee or other state agency. Robinson v. Korns, 250 Mo. 672. (3) When the owner files a plat subdividing his property into blocks and lots and showing on its face streets or avenues, and sells and conveys the lots abutting on the streets, he thereby dedicates to the public the streets so laid out by him. Buschmann v. City of St. Louis, 121 Mo. 523; Otterville v. Bente, 240 Mo. 296. (4) Upon the extension of the limits of Kansas City so as to include Bismark Place, in 1897, the street became vested in Kansas City, to the same extent as if the addition when platted had been within the city limits, and this is true even if there is an irregularity in the dedication. Clay Products Co. v. St. Louis, 246 Mo. 460; Wright v. Doniphan, 169 Mo. 601; Glasgow v. City of St. Louis, 15 Mo.App. 112. (5) The fact that the small portion of Baltimore Avenue in controversy was not used as a public street for a period from July 15, 1887, the date of filing of the plat for record, to December 2, 1897, when the city limits were extended so as to take in the property in controversy, did not divest the public of its right in the street. R. S. 1919, sec. 1314. The authorities are overwhelming in Missouri that this section applies to all streets dedicated to public use, either within or without the city limits of an incorporated city, and that non-user or actual adverse possession will not deprive the public of their rights in the street, unless such non-user occurred ten years prior to August 1, 1866. Marshall v. Springfield, 221 S.W. 17; Hatton v. St. Louis, 264 Mo. 634; City of Caruthersville v. Huffman, 262 Mo. 367; Dudley v. Clark, 255 Mo. 585; Hafner Mfg. Co. v. St. Louis, 262 Mo. 644; Columbia v. Bright, 179 Mo. 441; Brown v. City of Carthage, 128 Mo. 17; Robinson v. Korns, 250 Mo. 663, 672; Clay Products Co. v. St. Louis, 246 Mo. 346; Wright v. City of Doniphan, 169 Mo. 601. From a reading of these cases it will be observed that the statute is not intended to give relief to Kansas City or to Jackson County, but that it is a statute providing that no statute of limitations shall run against the public. (6) The acceptance by appellants of the deed to the lots fronting on Baltimore Avenue between Ward Parkway and 49th Street estopped them from denying the existence of Baltimore Avenue as a public street. Heitz v. City of St. Louis, 110 Mo. 618; Caruthersville, v. Huffman, 262 Mo. 367; Laddonia v. Day, 265 Mo. 383. (2) The improvements of one street in an addition is sufficient acceptance. Heitz v. St. Louis, 110 Mo. 618; Otterville v. Bente, 240 Mo. 291; Caruthersville v. Huffman, 262 Mo. 367. (8) Sec. 7847, R. S. 1889, providing that non-user by the public for the period of ten years continuously of any public road, shall be deemed an abandonment of the same, does not apply. It is only applied to public roads existing or which have existed, and not to the title of lands voluntarily conveyed in trust to be thereafter used for the purpose of establishing streets thereon as they should be needed. State v. Muir, 136 Mo.App. 118; State ex rel. v. Busse, 153 Mo.App. 446; Bobb v. St. Louis, 276 Mo. 59; Robinson v. Korns, 250 Mo. 663; Clay Products Co. v. St. Louis, 246 Mo. 446; City of Columbia v. Bright 179 Mo. 441; Hendrickson v. Grable, 157 Mo. 42; Williams v. St. Louis, 120 Mo. 403.
REEVES, C. Railey and White, CC., concur.
Plaintiffs (appellants) on January 19, 1920, filed their petition in the Circuit Court of Jackson County for an injunction against defendant city and its agents (respondents) to restrain said city from interfering with their private use of certain alleged portion of Baltimore Avenue in said city. A temporary restraining order was made, but upon final hearing same was dissolved and plaintiffs' bill dismissed. However, upon motion of plaintiffs, pending further proceedings, including the appeal to this court, the restraining order was re-entered and continued in force.
The petition alleged that the plaintiffs were citizens and residents of Kansas City and were the owners in fee simple of certain lots in Block D and C in Bismark Place, in Kansas City, and that they had owned the same, "together with all the real estate and appurtenances abutting thereon, for a period of more than thirty years, under certain warranty deeds and conveyances from persons owning said property, and have occupied the same and had the full, complete, continuous and uninterrupted possession thereof under said deeds and claims of ownership for and during all of said period of time; that all of said plaintiffs are and were at the times mentioned herein the officers, directors and owners of all of the capital stock of the Lyle Rock Company, and that the said plaintiff, the Lyle Rock Company, is a corporation duly organized and existing under and by virtue of ...
To continue reading
Request your trial