Hoechst v. Bangert

• Decision Date: 14 April 1969
• Docket Number: No. 2,No. 53622,53622,2
• Parties: Emil E. HOECHST et al., Appellants, v. Bill BANGERT et al., Respondents
• Court: Missouri Supreme Court

Page 476

440 S.W.2d 476

Emil E. HOECHST et al., Appellants, v. Bill BANGERT et al., Respondents.

No. 53622.

Supreme Court of Missouri, Division No. 2.

April 14, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 12, 1969.

Flynn, Parker & Badaracco, Norman C. Parker, St. Louis, for plaintiffs-appellants.

T. E. Lauer, Columbia, Edward F. O'Herin, O'Herin & Newberry, Malden, for respondents.

PRITCHARD, Commissioner.

Under Count III of their petition, plaintiffs seek to have a recorded instrument entitled 'Dedication' declared void as it pertains to a strip of land 100 feet wide across plaintiffs' some 1500 acres of land which lies east of the Missouri River in St. Louis County, Missouri. The strip in question is north of Interstate Highway 70, and runs generally in a north-south direction. At its northerly end it intersects old St. Charles Rock Road. Count I concerned the cancellation of an option to purchase agreement; Count II was for a money judgment on that agreement, the judgment on neither of these counts being appealed by either party. The further order under Count III enjoined plaintiffs 'from interfering with the use of said Creek Road by defendants Bill Bangert and Rosemary Bangert, R.C. Can Company and all employees and customers thereof, and the public in general.' Plaintiffs say the injunctive relief was not requested by defendants in their pleadings, and was beyond the trial court's jurisdiction.

On November 27, 1964, the dedication instrument (Plaintiffs' Exhibit 4 as recorded) was executed by Bill Bangert and Rosemary Bangert, his wife; and Emil E. Hoechst and Elsa Hoechst, his wife. The exhibit recites it to be in consideration of the mutual benefits accruing to the parties, who 'do hereby dedicate to public use forever, for highway purposes, a strip of land 100 feet wide, the center line of which is described as follows:'. Paragraph 1 of the description of the strip is of land owned by the Bangerts going southwesterly, then southerly from Interstate 70 to Creve Coeur Mill Road, which is approximately one and three fifths miles south of Interstate 70. Paragraph 2 describes the strip as being on land owned by the Hoechsts, and is here in issue.

Plaintiffs claim that the grant of the strip (Creek Road) for highway purposes could not be a statutory dedication because it does not comply with applicable statutes and ordinances requiring approval and recording of subdivision plats. Cited are §§ 64.070 and 228.010 et seq., RSMo 1959, V.A.M.S., and St. Louis County Revised Ordinance, §§ 1005.030 and 1005.040. Defendants say the contention is without merit because Missouri courts have repeatedly held that where acts of dedication fail to comply with applicable statutes and ordinances, the acts may still amount to a common-law dedication.

The area here upon which Creek Road was built was not incorporated on November 27, 1964. An attempt was made to annex it by the Village of Champ, but that annexation was held to be invalid in State ex inf. Eagleton v. Champ, Banc, Mo., 393 S.W.2d 516, 533(16). The St. Louis County Ordinance, § 1005.030, supra, defines as a subdivision of land, '(3) dedication or establishment of a road, highway or street through a tract of land, regardless of area.' § 1005.040 requires that 'Every subdivision of land within the unincorporated area of St. Louis County shall be shown upon a plat and submitted to the Commission for approval or disapproval.' It is then required that the County Court consider any plan approved by the Commission, and approve or disapprove the same. The County Council can approve a plan which has not been approved by the Commission, or if there are any written protests filed, only in accordance with the provisions of § 64.070, supra. § 228.010 et seq., supra, sets forth the procedure in county courts to establish public roads, with provisions for notice and hearing thereon. The question presented, as argued by plaintiffs, is whether these statutory and ordinance provisions are the exclusive methods of establishing or dedicating a roadway. Defendants concede that plaintiffs are correct in their assertion that the dedication instrument constituted an offer to dedicate to the public the roadway, and that such offer was required to be accepted by or on behalf of the public; and that the offer was not accepted by St. Louis County.

In the case of Connell v. Jersey Realty & Investment Co., 352 Mo. 1122, 180 S.W.2d 49, 53, although there it was held under the facts that there was no unequivocal dedication to public use, or an intention to do so, the rules of law concerning common-law dedications are set forth: 'We deduce from the law that in order to establish a common law dedication it must be shown: (1) That the owner, by his unequivocal action, intended to dedicate to public use; (2) that the land so dedicated must be accepted by the public; and (3) that land so dedicated must be used by the public. A common law dedication, sometimes termed implied dedication, operates not as a grant, but on the principle of estoppel.' In this case, there exists an express, unequivocal intention on the part of plaintiffs (along with defendants) to dedicate: 'do hereby dedicate to public use forever, for highway purposes, a strip of land 100 feet wide, * * *.' (Italics added.) In City of St. Charles v. De Sherlia, Mo.App., 308 S.W.2d 456, 459, a deed conveying a lot had in it also an agreement by grantor 'to open and dedicate and by these presents does open and dedicate to the public a strip of ground for a public street.' Citing Whyte v. City of St. Louis, 153 Mo. 80, 54 S.W. 478, and Poage v. Oser, Mo.App., 6 S.W.2d 1009, the court held that the recitals in the deed and in the plat attached thereto were sufficient to warrant a finding that the grantor intended to dedicate the land in question as a public street.

In Minium v. Solel, Mo., 183 S.W. 1037, the suit was for the establishment of an alley, which had been used as such for many years. It was said there, loc. cit. 183 S.W. 1040(5, 6), 'And it does not require a municipal or public act to indicate the acceptance of the easement. The continued use by the public for the purpose of travel will have that effect. (Citing cases.) The rule is, so far as applicable to this case that when the proprietor does some act which clearly indicates his intention to dedicate land to the use of the public as a street or alley, and the public by its act clearly indicates its purpose to take and accept the dedication and actually uses it for the purpose indicated for such a length of time as to show its intention to accept the offer implied by the act of the proprietor, these concurrent acts constitute a complete common-law dedication independently of the operation of the statute of limitations.' Hill v. City of Sedalia, 64 Mo.App. 494, 499, had a similar statement: 'No specific length of possession is necessary to constitute a valid dedication; all that is required is the assent of the owner of the soil to the public use, and the actual enjoyment by the public of the use for such a length of time that the public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment.' Again in Poage v. Oser, supra, loc. cit. 6 S.W.2d 1011(3) it is said, 'Where the intention to dedicate is manifest, no user for any definite period is necessary in order to show acceptance by the public.' It is manifest from the foregoing cases, first, that for a common-law dedication the approval of the St. Louis County authorities was not required; secondly, the intention of plaintiffs to make such dedication is clear from the instrument itself; thirdly, the dedication is not required to be accepted by governmental authority, so long as it in fact is accepted by the public as demonstrated by the use made of it, which (fourthly) need not be for the statutory period under § 516.010, RSMo 1959, V.A.M.S.

That the public in this case did in fact accept and use Creek Road is fully supported by the evidence. (See Baker v. Vanderburg, 99 Mo. 378, 12 S.W. 462, 465.) After the dedication instrument was signed, Bill Bangert proceeded, in December, 1964, to construct the road, with full knowledge thereof by plaintiffs. He completed it about February 1, 1965, and expended in excess of $30,000 thereon for grading, engineering fees and materials, including a double sealed asphalt surface over a rolled stone base. Clarence F. Mittler used the road thereafter two to four times a week; the employees of R.C....