Landis v. Hamilton

• Decision Date: 30 April 1883
• Citation: 77 Mo. 554
• Parties: LANDIS, Appellant, v. HAMILTON.
• Court: Missouri Supreme Court

77 Mo. 554

LANDIS, Appellant,

v.HAMILTON.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Bennett Pike and Doniphan & Reed for appellant.

Strong & Mosman and Spencer & Hall for respondent.

PHILIPS, C.

This action was instituted in 1875 in Buchanan circuit court and tried on change of venue in Andrew circuit court. The petition stated in substance that Fourth street was a public street in the city of St. Joseph, forming the eastern boundary of block 40; that James Hamilton, the father of defendants, owned lot 12 in this block in 1856; that he dedicated to the public in his lifetime ten feet of the eastern end of this lot adjoining and cornering with Fourth street, and that said ten feet were accepted by the public and city as a thoroughfare; that in 1860 James Hamilton died, and the defendants inherited said lot; that said ten feet were used as such thoroughfare until 1869, when the defendants built on said lot a three story brick house covering said ten feet, “thereby obstructing the said street and preventing the use thereof by the public;” that afterward the plaintiff, who owned lot 10 in said block, and some sixty-five feet distant from lot 12, built a business house on his lot. The petition then alleged that the plaintiff was damaged by the erection of said house by defendants, in that it greatly impaired the value and desirableness of his place of business; that it affected the yearly rental of his property, and prayed judgment for $5,000 damages.

The answer took issue as to the alleged dedication of said ten feet, and as to the obstruction and damages. It then pleaded specially that in 1866 the plaintiff presented a petition to the city council of St. Joseph praying that said ten feet be condemned to public use; that in connection therewith a proposition was submitted by plaintiff and others to indemnify said city against damages consequent upon such condemnation, and entered into a bond to that effect; that the city council accordingly passed an ordinance so condemning said ten feet. Defendants protested against the procedure. Notice was duly served on defendants by said city. A jury was empanelled to assess damages, who assessed defendants' damages at $3,000. The council refused to affirm this assessment, and ordered a new jury, which assessed the damages at $500. Defendants appealed to the circuit court, where the damages were assessed at $3,000. The city appealed to the Supreme Court, where this judgment of the circuit court was reversed, on the ground that the city council had no authority to order the second jury and assessment; that the Supreme Court held that if the city was dissatisfied with the first assessment of damages, it might appeal therefrom or abandon the ground; that thereupon defendants called on said city council to pay said $3,000, or to abandon said ten feet of ground, as they desired to build thereon. Thereupon, April 12th 1869, the city passed an ordinance abandoning said ground in accordance with the petition of defendants. Defendants relying thereon, and believing that neither the plaintiff nor the city could further claim said ten feet as appurtenant to said street, built thereon a house of the value of $8,000, without protest and with full knowledge on the part of plaintiff and the city.

The essence of plaintiff's evidence to support the alleged dedication, was that two or three parties owning some of the lots north of lot 12, between 1857 and 1860, proposed to the city council to give ten feet off the end of their lots to widen said street, which the witness says was assented to, but no ordinance was passed nor was there any record evidence thereof. After this the city engineer marked out the line of the curbstone for the sidewalk, which was about three feet beyond where the ten feet in question extended. Sidewalk was to be twelve feet wide. This curbstone extended the whole front of the block. When the engineer was about the running of this line James Hamilton was seen there with him, but what he said does not appear. He had the curbing done. Afterward he built a temporary house on the lot, and set it back about ten feet. One Allen testified that in 1865 Mr. Hamilton stated to him that he had given ten feet to widen Fourth street, and that it made his lot more valuable. This ten feet seems to have been used for the sidewalk up to the time of Hamilton's death in 1865.

On the other hand, defendants' evidence showed that Hamilton stated, angrily, to Donnell, who was trying to get the assent of the lot owners to give to the city the ten feet, that he never would consent. The records and the papers in the condemnation proceedings were put in evidence in support of the answer.

Plaintiff also offered evidence tending to show that his store-house was not so desirable as a business stand on account of defendants' house obstructing the view, and possibly injured its rental value.

The plaintiff asked the following instructions:

1. No particular form is necessary in the dedication of land to public use. It may be made by the owner thereof without deed or writing, all that is necessary being the giving up by the owner of the use and occupation of the land to the public, with the intention that the public shall have the permanent and exclusive right of such use, and common use and occupation by the public. In order to determine whether such intention exists in this case, the jury have a right to take into consideration all the facts and circumstances of the case in proof, touching the question of intention to dedicate on the part of Jas. hamilton, Jr., and any state of facts which would have bound Jas. Hamilton, Jr., will bind these defendants.

2. If the jury believe from the evidence that Jas. Hamilton, Jr., in March, 1856, purchased lot 12, block 40, in the city of St. Joseph, and that while such owner, he dedicated, within the meaning as given in the first instruction, ten feet from the eastern end of said lot, to the public use as a thoroughfare, and the same was accepted by the public as a part of such thoroughfare, and that these defendants, as the heirs of said Hamilton, and owners of said lot after his death, built a three story house, extending over and across said strip, so as to prevent and obstruct the use thereof by the public, and that plaintiff's store-house, situated on lot 10 of said block, has depreciated in rental value in consequence thereof, then they will find for the plaintiff, and assess his damages at such sum, not exceeding $5,000, as the evidence shows plaintiff has been injured by such depreciation.

3. The jury must be satisfied, from the evidence, that there was an acceptance by the public of the said strip of land, so, as aforesaid, intended to be dedicated by said Jas. Hamilton, Jr. But the acceptance need not be shown by positive formal ordinance of the city, but may be shown by user on the part of the public or the city, or by care thereof and control thereover by the public authorities of said city in such way as to evince an intention on the part of the city to accept and recognize the said ten feet in question as a permanent part of said street.

4. If the jury should believe that the facts and circumstances, as detailed in evidence, show a dedication of ten feet from the east end of said lot 12 to the public use, as a part of Fourth street, by Jas. Hamilton, Jr., the owner in fee thereof, then they are instructed that any subsequent proceeding on the part of the city to have the same condemned, as introduced in evidence, could not and did not revest the said Hamilton or his heirs with the right thereto or the control thereover.

The court gave the first three of said instructions, and refused to give the fourth instruction as asked, but gave the same with the following modification:

“But said proceedings for condemning said ten feet, together with the ordinance of the city, read in evidence, entitled ‘An ordinance abandoning a part of lot 12 in block 40, original town, now city, of St. Joseph, Missouri, near the corner of Fourth and Edmond streets,’ is a recognition of the right of defendants to said ten feet, and defendants in building on said ten feet, after the adoption of said ordinance, did not commit a nuisance for which plaintiff can recover.”

To which opinion of the court refusing said fourth instruction as asked, and giving it as modified, the plaintiff excepted. The court then, at its own instance, gave the following instruction:

If the jury believe from the evidence that about the year 1866, defendants claimed the ten feet in controversy as their own property, and the city, at the request of the owners of property in said city, instituted proceedings to condemn said ten feet of ground for and as a part of Fourth street, for public use, and said proceedings resulted in the assessment of damages in favor of defendants, as the owners of said lot 12, in the sum of $3,000, and that said city refused to pay said damages, and that defendants requested said city to abandon the said ten feet of lot 12 to them, and that thereupon the city did adopt the ordinance in evidence, in relation to the same, entitled “An ordinance abandoning a part of lot 12 in block 40, original town, now city, of St. Joseph, near the corner of Fourth and Edmond streets,” such ordinance is an abandonment of the claim of the city to said ten feet as a part of the street, and would authorize defendants to enter upon the same and erect improvements thereon; and if you further find from the evidence that defendants erected the building complained of after the adoption of said ordinance, without any objection or interference on the part of the city authorities, the erection and maintenance of said building on said ten feet of ground does not constitute a nuisance for which plaintiff can recover, in causing injury to his property built after the said ten feet was so abandoned, and defendants had built their house...