McGinnis v. City of St. Louis

• Decision Date: 12 June 1900
• Citation: 57 S.W. 755,157 Mo. 191
• Parties: McGINNIS et al. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

57 S.W. 755

157 Mo. 191

McGINNIS et al. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

APPEAL BY PLAINTIFF — ABSENCE OF BILL OF EXCEPTIONS — ADMISSIONS — PRESUMPTION — COMMON-LAW DEDICATION — CITY CHARTER — IMPROVEMENT OF STREETS — EJECTMENT.

1. In ejectment against a city for a strip of land used as a street, defendant pleaded a general denial, and a common-law dedication of the land from plaintiff's grantor. Held that, in the absence of a bill of exceptions, it would not be presumed, on appeal by plaintiff, that the jury found against plaintiff's claim of title, under the general denial of defendant, as defendant had admitted previous title in plaintiff, in pleading a common-law dedication, and was therefore bound to sustain the sufficiency of that affirmative plea.

2. One who had platted his land purchased two lots in an adjoining addition, to extend a street therefrom which did not run to his property. Through these lots he graded and macadamized a strip of land, and placed a large sign thereon, indicating that it bore the name of the street of which it was an extension, and published and circulated a map showing its location and name. Held, that such acts amounted to a common-law dedication, and that a purchaser of such strip from the owner of the addition, with full knowledge of all the facts, could not maintain ejectment against the city to oust it from the use thereof as a street.

3. St. Louis City Charter, art. 6, indicating the manner in which streets shall be dedicated, and forbidding the city to improve or repair any street not acquired "according to the provisions of this charter and law," does not prohibit the city from acquiring the use of a street by a common-law dedication.

4. A plaintiff could not maintain ejectment against a city for a strip of land used as a street, acquired from him by a common-law dedication, though he claimed there was a provision in the charter of the city forbidding it to improve or repair a street thus acquired, as such plaintiff was required to rely on the strength of his own title, not on the weakness of that of the city.

Error to St. Louis circuit court.

Ejectment by Nellie B. McGinnis and another against the city of St. Louis to recover possession of land used for a street. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

E. F. Stone, for plaintiffs in error. B. Schnurmacher and Chas. C. Allen, for defendant in error.

VALLIANT, J.

Ejectment for a strip of land 60 feet wide and 215 long, held by the defendant city as a public street. The petition is in the proper form. The answer is a general denial, and sets up a common-law dedication of the land by the plaintiffs' grantors and themselves to the public for a street. The reply put in issue the facts pleaded as a dedication. The cause was tried by court and jury. There was a verdict for defendant, and judgment accordingly. There was no bill of exceptions filed. Plaintiffs have brought the cause here, by writ of error, for review of the record proper.

1. It is first insisted by defendant in error that, since there is no bill of exceptions, it is to be presumed, in support of the verdict and judgment, that the jury found for the defendant on any of the issues joined in the pleadings, including the general denial, which would include also, of course, the denial of the plaintiffs' title. That position would be undoubtedly correct, but for the fact that, in pleading the facts constituting the common-law dedication, the defendant has shown previous title in the plaintiffs. The defendant must therefore rely upon the sufficiency of its affirmative plea, which, if sufficient, is sustained by the verdict.

2. The facts pleaded as constituting a common-law dedication are, substantially, that in 1886 the heirs of one Clements owned a tract of land lying parallel with, and 215 feet south of, the south line of Cabanne avenue, which tract they laid off into city lots, streets, and alleys. The general course of the tract was east and west between Belt avenue, on the east, and Goodfellow avenue, on the west, a distance...