McGinnis v. City of St. Louis
| Decision Date | 12 June 1900 |
| Citation | 57 S.W. 755,157 Mo. 191 |
| Parties | McGINNIS et al., Plaintiffs In Error, v. CITY OF ST. LOUIS |
| Court | Missouri Supreme Court |
Error to St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
E. F Stone for plaintiffs in error.
(1) The mode or method of dedicating a street, and performing the act of acceptance by the city of St. Louis is distinctly expressed both in the charter and ordinance of the city and by the statute of the state. Charter St. Louis, secs. 1 and 15, art. 6; R. S. 1889, secs. 1123 and 1137. Said provisions expressly prohibit the city from taking charge of, improving or repairing any street or highway, until the property shall have been "opened, established or dedicated according to the provisions of the charter and law." (2) When the mode of dedication, which includes acceptance by the municipality, is prescribed by the charter, there can be no acceptance, hence no dedication, in any other form or way. Such charter provision must be strictly pursued. There can be no implied acceptance or dedication by the municipality when the method or manner of accepting the property for public use is expressed in the charter. 1 Dillon on Mun. Corp. (4 Ed.) sec. 91, and note; Ex parte Mayor v. Florence, 78 Ala. 419; Smith v. Cheshire, 13 Gray 308; Lafayette v. Cox, 5 Ind. 38; Collins v. Hatch, 18 Ohio 523; Port Huron v. McCall, 46 Mich. 565; Willard v. Killingworth, 8 Conn. 247; Brink v. Collier, 56 Mo. 166; McDonald v. Mayor, 68 N.Y. 23. (a) And the express powers and methods can not be "added to, enlarged, or diminished by proof of usage." 1 Dillon on Mun. Corp., secs. 92 and 93. (b) When the charter provides that a thing shall be done in a particular manner, it can not be done in a different manner, especially when there are negative words that in effect prohibit the doing of the thing, unless it is done in the manner prescribed. 15 Am. and Eng. Ency. of Law, pp. 1042 and 1086; Beach on Pub. Corps., secs. 1041, 1042, 1177 and 1178; Zottman v. San Francisco, 20 Cal. 96; Gillman v. Milwaukee, 61 Wis. 588; Keeny v. Jersey City, 47 N. J. L. 449; First Presbyterian Church v. Fort Wayne, 36 Ind. 338; Johnson v. School district., 67 Mo. 321; St. Louis v. Franks, 78 Mo. 41; Crutchfield v. Warrensburg, 30 Mo.App. 463. (3) "The common-law dedication to a city of a right of way for public use, confers not merely the right to pass over the servient land, but it also includes the right on the part of the city to enter upon the land and to prepare it, and to keep it in suitable condition for the particular use to which it was dedicated." Gamble v. Pettijohn, 116 Mo. 375; Brown v. Stone, 10 Gray 60; Barney v. Keokuk, 94 U.S. 324; Elliot on Roads and Streets, pp. 80 and 90; Bishop on Non-Contract Law, sec. 873. (4) The city can not set up and prove as a defense to this action, any act in violation of its charter to establish a dedication. City of Kansas v. Ratokin, 30 Mo.App. 422; Kiley v. Oppenheimer, 55 Mo. 377; City of Kansas v. Swope, 79 Mo. 446; Allison v. City of Richmond, 51 Mo.App. 133; City of Dubuque v. Wooten, 28 Iowa 571. (5) The said answer nowhere States or shows a dedication by the owner of the fee. Dedication to public use can be made only by the owner of the fee. McShane v. City of Moberly, 79 Mo. 41; Hannibal v. Draper, 36 Mo. 332; City of Sarcoxie v. Wild, 64 Mo.App. 403; Ward v. Davis, 3 Sand. (N. Y.) 513; Marshall v. Anderson, 78 Mo. 85. (6) The question as to whether land has been dedicated to public use is one of intent. The intention to dedicate is absolutely essential, and it should clearly and satisfactorily appear. And this intent is to be ascertained from the acts and declarations of the owner. Missouri Institute v. How, 27 Mo. 211; Perkins v. Fielding, 119 Mo. 149; Irwin v. Dixon, 9 How. (N. Y.) 10. (a) And such acts and declarations must be of such a character as to show a clear purpose on part of the owner to devote the property to public use. Vossen v. Deutel, 116 Mo. 379; Baker v. Vanderburg, 99 Mo. 378. The said answer upon its face shows such acts as are inconsistent with and completely destroy and overthrow any idea of intent on the part of anybody to dedicate said land to public use.
B. Schnurmacher and Chas. Claflin Allen for defendant in error.
(1) The evidence not having been preserved or brought before this court, it will be presumed that the judgment of the lower court was in accordance with the facts developed upon the trial. Therefore, in considering the case as presented by the petition, the affirmative matter in the answer, and the reply, it must be assumed that every fact pleaded affirmatively was established. Claflin v. Sylvester, 99 Mo. 276; Woodsworth v. Tanner, 94 Mo. 124; State v. Brown, 75 Mo. 317; Johnson v. Long, 72 Mo. 210; Cress v. Blodgett, 64 Mo. 449. (2) Counsel for plaintiffs in error treat the case as if the general denial were not in the answer, and as if the record presented for determination the sole question of whether the facts set up affirmatively in the answer constituted a good defense. But on their own theory of the case the judgment of the lower court was correct, because the matters specially pleaded amount to a good common-law dedication of the strip of ground in question as a street. White v. St. Louis, 54 S.W. 478; Heitz v. St. Louis, 110 Mo. 618; Buschmann v. St. Louis, 121 Mo. 523; Baker v. Vanderburg, 99 Mo. 378; Bartlett v. Bangor, 67 Mo. 460; Rose v. St. Charles, 49 Mo. 510; Ragan v. McCoy, 29 Mo. 356; Hannibal v. Draper, 15 Mo. 634; McDonald v. Wolff, 40 Mo.App. 303; Archer v. Salinas City, 93 Cal. 43; Brown v. Stark, 83 Cal. 636; Carter v. Portland, 4 Ore. 339; Hicklin v. McClear, 18 Ore. 126; Town of Derby v. Alling, 40 Conn. 410; Herman on Estoppel and Res Judicata, sec. 1147.
VALLIANT, J. Marshall, J., not sitting, having been of counsel.
Ejectment for a strip of land sixty feet wide and two hundred and fifteen 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.
I. 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.
II. 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 of 2860 feet, and between those avenues for that distance there was no street running from south to north through the tract except Clara avenue which they had laid off but which terminated at the northern limit of their tract, 215 feet south of the south line of Cabanne avenue, and the result was that between Belt and Goodfellow avenues for a distance of 2860 feet, there was no access to Cabanne avenue offered the prospective lot purchasers in Clements place, and the owners of the intervening property were unwilling to extend Clara avenue through to Cabanne, or to sell a strip for that purpose to the Clements heirs, because it would have the effect to enhance the marketable condition of the Clements property and put it in competition with that in Cabanne place. To overcome this difficulty the Clements heirs caused a friend to purchase in his name for them, the two fifty-foot lots on the south side of Cabanne avenue, which had blocked Clara avenue, and then they opened Clara avenue to Cabanne by devoting one of the fifty-foot lots so purchased for them, and ten feet off the other, to this purpose, making the strip of 60 by 215 feet which is the land in suit. After this purchase the Clementses caused this strip to be laid off as a street, macadamized and otherwise surfaced...
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