Heitz v. City of St. Louis
| Decision Date | 20 June 1892 |
| Citation | 19 S.W. 735,110 Mo. 618 |
| Parties | Heitz, Appellant, v. The City of St. Louis et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
Fred. Wislizenus for appellant.
(1) To create a highway by estoppel there must be acceptance on behalf of the public, as well as intent to dedicate on the part of the owner. St. Louis v. University, 88 Mo 158; Kemper v. Collins, 97 Mo. 646; Putnam v Walker, 30 Mo. 600; Parsons v. Trustees, 44 Ga. 539; Detroit v. Railroad, 23 Mich. 210; People v. Beaubien, 2 Doug. 286; Brink v. Collier, 56 Mo. 162; Lee v. Lake, 14 Mich. 12; Harris v. Commonwealth, 20 Gratt. 640. (2) Public user of a street is of avail only as evidence of acceptance by the proper authorities. Detroit v. Railroad, 23 Mich. 210. (3) The city of St. Louis has no right to remove forcibly what it claims to be purprestures from what is not a de facto street.
William C. Marshall, City Counselor, and Louis A. Steber for respondents.
(1) Under the facts of this case, the plat being unacknowledged, the streets having been used, and rights being acquired by third persons by deeds referring to the plat, makes this a good and valid common-law dedication. 2 Dillon's Municipal Corporations [4 Ed.] sec. 628. (2) Dedication of land to public use depends upon the intention of the owner, and, whenever this intention is unequivocally manifested, the dedication is made, so far as the owner of the soil is concerned; and, if accepted and used by the public in the manner intended, the dedication is complete, and the owner and all claiming in his right are precluded from asserting any ownership inconsistent with such use. Pierce v. Chamberlain, 82 Mo. 618; California v. Howard, 78 Mo. 88; Oswald v. Grenet, 22 Tex. 94. (3) It is not necessary, in order to constitute a street or alley in a municipal corporation, that the statutory course should be pursued. Any act by the owner setting apart to the public a portion of his property, clearly showing that such was his intention, vests the use of the property in the public for the purposes indicated, and if actually thrown open the public may take possession. In such case no ordinance or formal acceptance of dedication is necessary. Rose v. St. Charles, 49 Mo. 510; Baker v. Vanderberg, 99 Mo. 378. (4) Mrs. Carr's intention to dedicate is unequivocally manifested by the sale of lots with reference to the plat filed though not executed by acknowledgment in conformity to the statute, on which plat the streets and alleys are laid out, and as such are clearly described in the deeds given by her to the purchasers of such lots. Baker v. Vanderburg, 99 Mo. 378; Meier v. Railroad, 16 Or. 500; S. C., 19 P. 610; Griffin v. Olathe, 23 P. 470. (5) In fact there could be no intelligent explanation of the dimensions and boundaries of the lots sold by Mrs. Carr without reference to the plat filed. Heselton v. Harmon, 14 A. 286. (6) The failure to acknowledge the plat can make no possible difference so far as this case is concerned. Com'rs v. Wilgus, 42 Kan. 457; Meier v. Railroad, 18 Or. 500. (7) The deed of Mrs. Dorcas Carr to Frederick Heitz of the land hitherto used and dedicated as streets and alleys could not operate as a revocation of her previous acts. Brown v. Stark, 83 Cal. 636. Nor could she, or those claiming under her, exclude the public therefrom. Harrison Co. v. Seal, 5 S. Rep. (Miss.) 622. In fact, the dedication made is absolutely irrevocable. No other doctrine could be sanctioned by a court of justice. Hicklin v. McClear, 18 Or. 126. (8) The city is under no obligation to improve the street at once. It may be allowed to remain dormant until its use becomes a public necessity. Meier v. Railroad, 16 Or. 500; Griffin v. Olathe, 24 P. 470; Oswald v. Grenet, 22 Tex. 94. (9) The evidence is clear that there was more than ten years' adverse user by the public, and this is sufficient to bar a recovery by the plaintiff. Price v. Breckenridge, 92 Mo. 378. Especially in a case like this where such use and occupancy was acquiesced in by the original owner, Mrs. Carr. State v. Walters, 69 Mo. 463.
The plaintiff claiming ownership by quitclaim deed from Mrs. Carr of strips of ground, marked on the plat "Kosciusko" street and the two 'alleys," fenced in said strips, whereupon the defendant city, through its marshal, Neiser, went about to tear down the fences obstructing the street and alleys, when plaintiff applied for, and obtained, a temporary injunction, which, upon final hearing, was dissolved; hence, this appeal.
In 1859, Mrs. Dorcas Carr, being then the owner of a tract of ground extending from Carondelet avenue (now Broadway) eastward to the Mississippi river, caused a plat thereof to be made, subdividing the same into city blocks, streets and alleys, and caused said plats to be filed in the office of the recorder of deeds for the county, now city of St. Louis, but, through inadvertence or neglect, failed to attach thereto the acknowledgment required by the statute.
Following the filing of this plat, and in the same year, 1859, Mrs. Dorcas Carr offered by advertisement all the ground, so platted, for sale at public auction, naming the day and the hour. At the corners of the "lots" in the "blocks," as platted and designated by her, were placed small flags, designating the boundaries of the "lots" proposed to be sold, and the parts of the plat indicated as streets and alleys were staked off and the points indicated by stones. A number of "lots" were sold at this auction, eastward from Carondelet avenue (now Broadway), down to Second street (now DeKalb street), and lots 1 and 2 east of said Second street, which were sold to one Henry Sharpenberg, and now owned by one Henry Christian. The auctioneer, in crying out the sale, described the property, "This is a corner lot;" "This is a strip sixty feet wide;" "This property lies on an alley seven and a half feet wide," and so on, with each parcel offered and sold.
The property was not all sold at that time. After the war, Mrs. Dorcas Carr, acting through her real estate agents, Messrs. Carr and Kerr, had another public auction sale of the unsold property so platted off. Circulars were printed and issued containing copies of the recorded plat, and at this sale lots were sold by reference to the description contained in the plat, as for instance lot number 2 in block 4 of Dorcas Carr's continuation of Rock Point addition as per records (so and so) as filed in the recorder's office. When the first sale was made (in 1859) there were no numbered city blocks, and at both sales the description of property in the deeds referred to this plat. At the second sale, which occurred, it seems, in 1866 or 1867, boards were put up on the property to be sold, and the boundaries of the lots were all marked by flags at each corner; they were so marked in front of the lots, and the sales were made accordingly. At this sale there was no property sold east of Second street (now DeKalb). Later on, the property east of DeKalb street (formerly Second street) was sold, some to Henry Christian and some to John C. Gmeiner (who afterwards conveyed to Heitz, the plaintiff herein), and in these deeds the boundaries were by the streets and alleys as platted.
In 1887, the plaintiff, through his agent Gehner, began negotiations with C. Bent Carr, the son and agent of Mrs. Dorcas Carr, and told him that Kosciusko street and the two alleys had never been dedicated. Mr. Carr said it must be a mistake; when Mr. Gehner assured him he was positive of it, Mr. Carr replied: "Mr. Gehner, we have sold all that property down there, and we have bounded the lots by those streets and alleys, and there is one thing certain that my mother does not claim any of those streets and alleys, because, in making those deeds we had always bounded the lots by those streets and alleys, designating them lot so and so, bounded so and so."
Gehner, for the plaintiff, offered to Mrs. Carr's son and agent $ 200 for a quitclaim to Kosciusko street, who, on being advised by his attorney, Mr. Haeussler, that if the parties chose to take a deed from Mrs. Carr for what she did not own, it was all right, and which fact was so declared to Mr. Heitz, when the deed was made. In that deed the property is described as "Kosciusko street," and as "alleys," etc.
There was some evidence tending to show the use of a portion...
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