Kansas City Milling Co. v. Riley, Plaintiffs In Error

• Decision Date: 17 March 1896
• Citation: 34 S.W. 835,133 Mo. 574
• Parties: Kansas City Milling Company v. Riley et al., Plaintiffs in Error
• Court: Missouri Supreme Court

34 S.W. 835

133 Mo. 574

Kansas City Milling Company v. Riley et al., Plaintiffs in Error

Supreme Court of Missouri, Second Division

March 17, 1896

Error to Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

G. F Ballingal and Botsford & Williams for plaintiffs in error.

(1) The attempted dedication by A. J. Lloyd in 1866 was ineffectual as a statutory dedication because he was not at that time the owner. Angell on Highways [3 Ed.], 147; 5 Am. and Eng Encyclopedia of Law, p. 398. (2) The statute in force at the time required the dedication to be made by the "proprietor" of the property, that is, the "owner" of the same. Gen. Stat. 1865, sec. 1, ch 44, p. 257; 2 Rap. Law Dict. Hoc., tit. "Proprietor;" Hannibal v. Draper, 36 Mo. 332; McShane v. Moberly, 79 Mo. 41; Lee v. Lake, 14 Mich. 12; s. c., 90 Am. Dec. 220, and cases cited. (3) The attempted dedication by Lloyd was not valid as a common law dedication, because there was no acceptance by the public authorities, or user by the public of the strip in controversy as a public highway. (4) To constitute a common law dedication, there must be an acceptance by the public; and where user is relied on to establish a dedication, it must show continuous, adverse occupancy and use of the land as a public highway for ten years. Bauman v. Boeckeler, 119 Mo. 189; Vossen v. Dautel, 116 Mo. 379; Kemper v. Collins, 97 Mo. 644; Brink v. Collier, 56 Mo. 160; 5 Am. and Eng. Encyclopedia of Law, pp. 414 and 415, and cases cited. (5) Defendant's ten years adverse possession is a complete bar to plaintiff's suit. Ins. Co. v. St. Louis, 98 Mo. 422; Mississippi Co. v. Vowels, 101 Mo. 225. (6) The injury complained of as shown by the evidence, if any, is general to the public and not special to the public. Canman v. St. Louis, 97 Mo. 92; Van Devere v. Kansas City, 107 Mo. 83. (7) To enable plaintiff to recover in the suit, the damages must be different, both in kind and degrees, from that suffered by the public in general. Bailey v. Culver, 84 Mo. 531; Kinnealy v. Railroad, 69 Mo. 663; 9 Am. and Eng. Encyclopedia Law, "Highways," p. 414, and cases cited. (8) The switch railway track in use by plaintiff on the strip of ground claimed by it as a public street, constitutes, if the strip be a street, a public nuisance. Glaessner v. Brewing Association, 100 Mo. 508. (9) And plaintiff by maintaining this switch, contributes to the obstruction of the street complained of, and can not therefore require defendants to remove their dwelling house constituting a part of such obstruction. Hannibal v. Richard, 82 Mo. 330; s. c., 35 Mo.App. 1. (10) The right of action of the adjoining and abutting owner for the removal of the dwelling house of defendants from the strip in controversy accrued at the time of its erection in 1879, and was barred by the ten years' uninterrupted use and occupation prior to the commencement of this suit. James v. Kansas City, 83 Mo. 567, and cases cited; Bird v. Railroad, 30 Mo.App. 365. (11) In this action plaintiff is entitled to the same remedy, and is barred as to any relief thereunder, as if the erection complained of was a private nuisance. Welton v. Martin, 7 Mo. 307; Schopp v. St. Louis, 117 Mo. 135.

Austin & Austin for defendants in error.

(1) The evidence shows a statutory dedication of Lulu street by A. J. Lloyd on May 24, 1866. (2) There was no necessity of any acceptance on the part of Jackson county while the subdivision was out of the limits nor upon the part of Kansas City while the same was within the limits of said city. Dillon on Mun. Corp., sec. 491; Reid v. Board, 73 Mo. 295; Reagan v. McCoy, 29 Mo. 356; Fulton v. Merenfield, 8 Ohio St. 440; Elliott on Roads, p. 89. (3) The circumstances attending the dedication may be such as to preclude the owner from retracting the dedication even before any act of acceptance on the part of the public; in such case the dedication is immediate. Angell on Highways [3 Ed.], sec. 149; Trustees v. Cowen, 4 Paige, 510; Public v. Lambirk, 5 Denio, 9. (4) Lloyd and his heirs after the title was perfected by their acts ratified and confirmed the dedication made by Lloyd during his lifetime. (5) Every property owner has the right of access to and from his lot which is special to him. Knapp v. Railroad, 28 S.W. 627; DeWitt v. Van Schoyt, 110 N.Y. 7.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

Action by plaintiff, an adjoining proprietor, for an injunction and restraining order against defendants restraining and enjoining them from maintaining a dwelling house in Lulu street, in Kansas City, Missouri. From a judgment and decree abating the same as a nuisance, and ordering its removal from the street, defendants sued out their writ of error to this court.

On the twenty-fourth day of May, 1866, Alfred J. Lloyd subdivided the east half of the southeast quarter (less ten acres off the north end) of section 7, township 49, of range 33, in Jackson county, Missouri, into lots and blocks, and filed a plat of said subdivision in the recorder's office of said county, which was duly acknowledged and recorded, May 24, 1866. By this plat Lloyd, in so far as it was in his power to do so, donated to the use of the public the land marked and designated on said plat "for streets and alleys." Among the streets marked on said plat was a strip of ground on the north side of said subdivision, twenty-five feet in width, and running east and west the entire length thereof and designated on said plat as "Lulu Street." Another street on said plat, forty feet wide, on the east side of the land, and running north and south its entire length, was designated on the plat as "Broadway."

At the time of this dedication, Lloyd was in the actual possession of the land described in the subdivision, but the title was in one Catherine E. Johnson, a married woman, who in 1853 had attempted to convey the same to John C. McCoy, under whom, through various warranty deeds, Lloyd claimed title. This deed of Mrs. Johnson, her husband joining therein, was acknowledged before a justice of the peace, in September, 1853, and not otherwise, and by reason thereof failed to convey any interest in the premises. Afterward, in 1869, Mrs. Johnson, being then a widow, executed a deed to McCoy, to the same land, in confirmation of the former deed of herself and husband to said McCoy.

Lloyd died intestate in 1866, and in 1869 his administrator conveyed block (11) of said subdivision to Bevan P. Jamison. This block 11 contained ten acres in the northeast corner of said subdivision, fronting north and east, according to the plat on Lulu and Broadway streets, designated therein, and was marked on the recorded plat as the "Mansion House" property of A. J. Lloyd. In 1870, Mrs. Catherine E. Johnson having remarried, executed with her husband a deed of conveyance to this block 11 to said Jamison, reciting in said conveyance that it was in confirmation of the title of said Jamison to said lot from her through McCoy, under the defectively executed deed from her and her husband to McCoy.

At this time, and for some years afterward, the lands lying north of this Lloyd tract for over a quarter of a mile, to the old Shawnee road, were open, unimproved "commons," and people would occasionally pass over these commons in going to the Shawnee road from Broadway, and in going down to the west bottoms of the Kaw river. This strip or street was never worked or improved in any way, nor recognized as a highway by the county or the public, other than by such occasional travel over it in connection with said commons, until after the lands of which it was a part were taken inside the limits of Kansas City, in the year 1885, as hereinafter stated.

Jamison died intestate in possession of this property (block 11, A. J. Lloyd's subdivision), and in 1882 his widow and heirs-at-law subdivided the same in partition and filed a plat thereof called "Jamison's Subdivision." By this plat said ten acres is divided into lots, blocks, streets, and alleys, and Lulu street is laid out and designated as the street running on the north side thereof, twenty-five feet in width, from Broadway to Summit street, the same as in Lloyd's plat.

After the plats of these subdivisions had been recorded, the property therein was thereafter assessed by the county assessor, according to the plats, and the same was sold and conveyed by numbers of the lots and blocks, as designated on the plats.

In the year 1881, George H. Winn became the owner of a piece of property on the north of and adjoining Lloyd's subdivision, fronting one hundred and one feet on said Broadway street, and running west two hundred and fifty-eight feet on said Lulu street, and from thence northeastwardly to the place of beginning, and erected a flouring mill thereon, and in 1882 the plaintiff became the owner thereof and ever since then has used said property for milling purposes. This property of plaintiff, the Kansas City Milling Company, is no part of A. J. Lloyd's subdivision, but adjoins it on the north and on the north line of the twenty-five feet of ground designated on the plat of that subdivision as Lulu street.

At the time of the purchase of this property by plaintiff, and prior thereto, defendants had built a dwelling house and shed room attached on this strip of ground, claiming to use and occupy the same as a home from the time it was first built, and they continued to live therein up to and until the final judgment in this case. This house of defendants was fourteen feet by twenty-eight feet in size, was built in March, 1879, and occupied a portion of said strip designated as Lulu street, about one hundred and eighty feet west of Broadway, and about sixteen feet south of the mill of plaintiff.

Defendan...