Kansas City v. Scarritt

• Decision Date: 18 June 1902
• Citation: 69 S.W. 283,169 Mo. 471
• Parties: KANSAS CITY v. SCARRITT et al.
• Court: Missouri Supreme Court

69 S.W. 283

169 Mo. 471

KANSAS CITY v. SCARRITT et al.

Supreme Court of Missouri, Division No. 2.

June 18, 1902.

CEMETERY — DEDICATION — LEGAL TITLE — ADVERSE POSSESSION — ABANDONMENT — EVIDENCE — DEEDS — ANCIENT DOCUMENT — APPEAL — OBJECTION IN TRIAL COURT.

1. A square was marked, "Donated for graveyard," on an original plat filed by the owner with the recorder of deeds. Five years later a city was incorporated, including within its limits the graveyard. Held, that the legal title to the square remained in the original owners, subject to the use of the public, for the purpose of dedication; it not having passed to the city by dedication, as the latter was not in existence at that time.

2. A city holding land as trustee for the use of the public as a cemetery cannot at the same time hold it adversely and for its own benefit.

3. In 1847 a square of land was "donated for graveyard" by the original owners, which later became part of a city. In an action in 1874 the city disclaimed ownership in fee, and in another suit, in 1884, averred by its answer that the square was a graveyard; and its counsel in open court declared that the city did not claim the square, and never expected to get it, but did claim it as a graveyard, and had the right to bury there. Held not to show an intent to hold adversely.

4. The mere passage of a city ordinance prohibiting future interments in a graveyard did not constitute an abandonment thereof, especially where the bodies were not removed for 21 years.

5. The proximity of land to a square donated for a graveyard does not so enhance its value as to prevent possession of the square from reverting to the original owners after an abandonment thereof for burial purposes.

6. Where a court of general jurisdiction had jurisdiction over both persons and subject-matter in partition proceedings, it will be presumed that all the necessary persons were made parties, and that the sale was confirmed, in the absence of any statement in the record in relation thereto; and a deed of such partition was properly received in evidence.

7. A plaintiff in ejectment, claiming title by adverse possession, cannot object to the reception in evidence of the deed through which defendant claims.

8. A deed executed more than 50 years before being offered in evidence, and which came from the proper custody, is admissible as an ancient document.

9. An objection to evidence "that the offer was too general" raises no question for review.

10. Where the parties agreed in open court that either might use as evidence parts of a transcript of a former action, subject to objections as to relevancy, materiality, etc., the reception of such transcript will not be reviewed in the absence of any objection thereto.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Ejectment by the city of Kansas City against E. L. Scarritt and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

R. B. Middlebrook and John Muckle, for appellant. Scarritt, Griffith & Jones, Mr. Wallace, John W. Noble, H. A. Loevy, and H. F. Simrall, for respondents.

SHERWOOD, J.

Ejectment for that certain block of ground in Kansas City bounded by Missouri avenue, Locust street, Independence avenue, and Oak street, which was formerly the subject of controversy in Campbell v. City of Kansas, 102 Mo. 326, 13 S. W. 897, 10 L. R. A. 593. Ouster laid as of December 19, 1890, and damages in the sum of $10,000 demanded. Defendants in this action, or their predecessors in interest, were plaintiffs in the former case, and were put in possession under a writ of restitution upon final determination of the former action. Shortly after such restitution, plaintiff renewed the legal contest by bringing the present possessory action to recover possession of the premises thus lost, but upon the resultant trial again suffered defeat, and now, for the second time, questions the correctness of such outcome by this appeal.

The facts out of which this litigation arose are briefly as follows: In 1843 John C. McCoy and others acquired at a partition sale a tract of land which included within its bounds the locus in quo. In June, 1847, McCoy made a plat of the part of the property which he and his associates had acquired, laying off 150 lots for sale, and dividing the balance of the tract into portions, which he designated as "lands." One of these "lands" was No. 21 upon the plat, and is the same property now in dispute. In the following September these so-called lands were divided among the 14 proprietors, and that land No. 21 was marked on the plat by McCoy, "Donated for graveyard." The plat was never signed or acknowledged by any one, but two years later was deposited in the office of the recorder of deeds. It seems from the evidence that even before this donation the property had been used for the interment of human bodies, and was so used by the general public until 1857, and occasionally burials took place there up to 1862. The plaintiff city was incorporated in February, 1853, and this particular plot of ground was included within its corporate limits. In October, 1857, the city passed an ordinance prohibiting further interments in this graveyard, and declaring it vacated for burial purposes, but it appears that at that time none of the already interred bodies were removed. Until 1866 the plot seems to have remained in unchanged condition, except that during the war it was much neglected, and some of the tombstones and fences broken down. About the latter year some of the bodies were removed to other places of sepulture, and in 1870 the city inclosed the graveyard with a plank fence, which remained standing but a year or two. Between 1872 and 1874 the city undertook to grade all the streets about the graveyard, and in so doing all of the old fence which remained was completely destroyed. During the progress of the work many human remains were encountered, and this caused a removal of almost all of those yet remaining. From that time forward the property presented the usual appearance of a neglected graveyard until the spring of 1878, when the city proceeded to grade the property to the level of the established streets surrounding it; using the prisoners serving sentences in the city workhouse in performing the work, which was in progress for some time, but finally completed during the summer of 1879. While it was going on, all the graves which remained were removed. The remains of those which could be recognized were interred in other suitable places, and those incapable of recognition were gathered together in boxes. After completion of this work all traces of a burial place were destroyed, and there was no feature about the property which would give a clue to its former or present use. It is in evidence, however, that the city conceived the idea of placing monuments or small slabs of stone underneath the surface of the ground, for the purpose, as was said, of indicating the existence of graves, but nothing was left upon the surface which might indicate the former nature of the property; and after the present defendants got into possession a search for bodies was made under these small pieces of stone, but no traces were found of either human remains, or boxes in which they might have been buried. It further appeared in evidence that the city by its ordinance of March 5, 1868, condemned an alley through the center of the block, and in 1872, by its answer in a certain cause then pending in the circuit court of Jackson county, wherein one Grant was plaintiff and the city defendant, the latter averred "that the defendant has never owned, and does not now own, in fee simple absolute, the lot or parcel of ground described in the petition, or any part thereof," and that upon the trial of the former case, to wit, that reported in 102 Mo., 13 S. W., and 10 L. R. A., supra, the attorney for the city, in response to an offer of certain evidence, said: "The city don't claim the square, and never expects to get it. They claim it as a graveyard, and have the right to bury there, and people are buried there now." On behalf of defendants here it was also shown that in its answer in the Campbell Case the city averred that "said land No. 21 is now, and was since June, 1847, and has been, a graveyard, and that the city of Kansas City has during the last fourteen years expended large sums of money in and upon said graveyard." The answer of all the defendants save one, after admitting possession and denying the right of plaintiff, set up the foregoing action and conduct of the city by way of estoppel, and pleaded that since the judgment in the former case the plaintiff had assessed and collected special taxes and assessments against the property, and had in other ways recognized the ownership of the defendants. The other defendant stood upon a general denial. After the city had joined issue by filing a reply in the nature of a general denial, the venue was changed to Clay county, where a trial was had, with the result above stated. The city now prosecutes its appeal from that judgment, and seeks to overturn the ruling which the trial court made in accordance with the opinion of this court in Campbell's Case.

1. At the outset it will be seen that the plaintiff's claim is not supported by...