McGrath v. City of Nevada

• Decision Date: 30 March 1905
• Citation: 188 Mo. 102,86 S.W. 236
• Parties: McGRATH v. CITY OF NEVADA et al.
• Court: Missouri Supreme Court

86 S.W. 236

188 Mo. 102

McGRATH v. CITY OF NEVADA et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1905.

STREETS—TITLE BY DEDICATION—ADVERSE POSSESSION AGAINST COUNTY.

1. Where the owner of land does an act clearly indicating his intention to dedicate a strip to a city for a street, and the city does an act clearly indicating its purpose to accept, and improves and uses it for a street, the city acquires a title by common-law dedication, with which limitations has nothing to do, so that use need be shown only for time enough to show the intention of the parties.

2. Adverse possession of land, begun before a county acquires title thereto, is not interrupted by such acquisition of title, under Rev. St. 1899, § 4270, providing that nothing contained in any statute of limitations shall extend to any land devoted to a public use.

Appeal from Circuit Court, Vernon County; H. C. Timmonds, Judge.

Action by Nicholas McGrath against the city of Nevada and others. Judgment for defendants. Plaintiff appeals. Affirmed.

M. T. January, for appellant. A. J. King and J. B. Johnson, for respondents.

VALLIANT, J.

Plaintiff sues in ejectment for the possession of two strips of land which are embraced in two of the city's streets, one of the strips being 15 feet wide, and the other 29 or 30 feet wide, and which have been in use as parts of the streets for 20 years or more. The evidence shows that in 1869 Elizabeth Blake was the owner of the land of which these two strips were formerly a part. In June, 1869, Mrs. Blake borrowed some school-fund money from the county, and gave a mortgage on the land to secure it. The mortgage was foreclosed in 1879, and bought in by the county of Vernon, and held by it until 1883, when it sold the land to Logan, who gave back a mortgage to the county for part of the purchase money, and some money also loaned him out of the school funds. This mortgage was dated October 4, 1883. This mortgage was also foreclosed, and the land again bought in by the county, December 19, 1893. The county held the land until September 9, 1896, when it contracted to sell it to the plaintiff, McGrath, who took possession at that time, and his title was afterwards completed by a deed from the county dated January 8, 1901. The street on the east of the property embraces a strip 15 feet wide of the land called for in the deeds above mentioned, and the street on the south embraces a strip 29 or 30 feet wide of the same land. Those two strips are the land in suit. When Logan bought the land there was a small house on it, and remnants of an old fence, consisting of posts and a few boards along the east line, indicating where a fence had been, marking off the 15-foot strip into the street. Logan built a new fence along that line, and a sidewalk on the outside, and built a fence on the south line, marking off the 29 or 30 foot strip into the street on that side. That was in the spring of 1883, and those two strips have continued to be a part of those two streets ever since. In the following October, Logan gave the mortgage to the county for the school money. Although the evidence did not show how long before Logan took possession of the property those two strips had been a part of those two streets—that is, when they were first marked off by the fences—yet it did show that they were embraced in the streets long before Logan went into possession, and for more than 20 years before this suit was begun. Logan testified that he set his fences as he did to mark off the streets, and that he induced the city to have it worked as a part of the streets. The cause was tried by the court, jury waived, and the finding and judgment were for the defendants. The plaintiff appeals.

The only point relied on by appellant is that while the land was held by the county as mortgagee or owner in trust for the public schools the statute of limitations did not run in favor of the city. Section 4270, Rev. St. 1899, is, "Nothing contained in any statute of limitations shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this...