McKee v. City of St. Louis

• Decision Date: 31 October 1852
• Citation: 17 Mo. 184
• Parties: MCKEE, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

17 Mo. 184

MCKEE, Respondent,

v.CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

October Term, 1852.

1. On an inquest by a jury before the mayor of the city of St. Louis, under the charter of 1841, to assess the damages to owners of property by the opening of a street, several persons may be joined in one estimate and assessment, provided the sum assessed to each is ascertained by the jury.

2. In such a case, where one of the owners takes the proper steps and has the assessment set aside as to him, the setting aside will not enure to the benefit of the others, who have taken no such steps. The mayor, under that charter, had no power to set aside an assessment after the expiration of ten days.

3. Where A. dedicates land to the city for a street, and afterwards executes a conveyance to B. which includes the land so dedicated, parol evidence is admissible, in a proceeding between the city and B., to show an agreement by B., at the time of receiving the conveyance, that the street should remain open. Land may be dedicated to public use without a deed.

Appeal from St. Louis Court of Common Pleas.

John C. Richardson, for appellant. 1. The facts in this case show that there was a dedication to the public of the land sued for by the plaintiff. To effect a dedication, no particular words or acts are required, no donee or grantee is necessary, and no particular length of time is requisite for evidence of a dedication. City Council of Lafayette v. Holland, 18 La. Rep. Brown v. Manning, 6 Ohio, 303. Brown v. McCandless, 7 Ohio, 2d part, 136. Beatty v. Kurtz, 2 Pet. 566. Cincinnati v. White, 6 Pet. 432. Wyman v. Mayor of New York, 11 Wend. 562. 1 Hill, 190, 193. Livingston v. Mayor of New York, 8 Wend. 85. Carlin v. Paul, 11 Mo. Rep. 32. 2. If the property had not been dedicated, it was regularly condemned in July, 1842. By the ordinance, the mayor might, within ten days after any inquest, set the same aside for good reasons shown, but after that time, he had no power in the premises. The plaintiff took no steps to have the inquest set aside. The mandamus of the Circuit Court, granted on the application of Waddingham and Laveille, directing the mayor to set aside the verdict as to them, making no mention of the plaintiff, did not disturb the verdict as to him. The verdict was joint and several. In the case of Coles v. Trustees of Williamsburg, 10 Wend. 665, it was held that one party could not avail himself of any irregularity in the appraisement of the value of the land of others. 3. The court below erred in giving judgment for the value of the fee of the land taken for a street, with interest. This judgment can only be sustained on the supposition that the recovery and satisfaction of a judgment for trespass on land amount to a transfer of the title.

F. M. Haight, for respondent. Under the charter of 1841 (art. 6, sec. 1,) the city had a right to take the land of plaintiff for a street. 2. The measure of damages is the value of the land taken, and interest from the time it was taken. Jacobs v. Louisville, 9 Dana, 114, and cases there cited. 3. The land having been taken without compensation, the owner has his election to affirm the taking and sue for the value of the land, or bring ejectment and recover his land. This case falls within the principle in Bloodgood v. M. & H. R. R. Company, 14 Wend. 51, on p. 57, and cases there cited. 4. There are no facts in this case upon which to make the point that the land was dedicated to the use of the public. There is literally nothing except the words, “proposed street,” on the plan or survey of plaintiff's land, which amounts to nothing. There was no deed. It never had, in any manner, been made or recognized as a street. 16 L. R. 509. 5. The assessment was set aside as to McKee as well as the others. It was an entirety. The distribution was separate, but the amount each would receive must depend upon the amount assessed. 6. There was no evidence that McKee had any notice of the proceedings. 7. The deed of Payne to McKee cannot be altered or explained by parol evidence. If it can, there is no proof of dedication, but only of some agreement to dedicate.

SCOTT, Judge, delivered the opinion of the court.

This was an action begun by petition in the name of McKee, against the city of St. Louis, for appropriating 60 by 137 feet of ground in opening Jefferson or north First street. The object of the suit was to recover the value of the ground appropriated by the city.

The defense admitted the appropriation of the ground by an ordinance of the city authorities, but stated that it was done after an assessment of damages in the manner prescribed by the charter in such cases; and that the damages so assessed the city was willing and offered to pay. As a further defence, the answer stated that, in August, 1831, and before and since, a public highway covered the ground now claimed; that the said highway had been used without objection, and with the knowledge and consent of the owner of the ground across which it extended, and that before or at the time of his purchase, stones or other monuments were set up, indicating the width of the highway.

The proceedings for the condemnation of the land show that, in August, 1841, in pursuance to the provisions of the charter, under the direction of the mayor, a jury was summoned to assess the damages to the plaintiff, Wm. Waddingham, and the representatives of Edward P. Wheeler's estate, by the extension of the street through their property. The first jury did not agree. In September, 1841, another jury was sworn, who gave the plaintiff $60, Waddingham $30, and the estate of Wheeler, $30, for damages; at the instance of the parties interested, this assessment was set aside by the mayor. In June, 1842, another venire was issued, and the jury, failing to agree, were discharged, and another summoned, who, on the 16th of July, 1842, in the presence of the parties, made an entire assessment of damages, amounting to $15; and of this sum, awarded to the plaintiff, $5; Waddingham, $5; and to the representatives of the estate of Wheeler, $5. On the 25th July, 1842, Waddingham and J. C. Laveille, agent for the heirs of Wheeler, made a written communication to the mayor, in which they protested against the finding of the jury, and asked that the verdict be set aside. The mayor refused to disturb the verdict, and rendered judgment thereon. McKee, the plaintiff, did not unite in this protest and motion. On the 27th May, 1843, a mandamus was awarded by the Circuit Court of St. Louis county to the mayor, directing him to set aside the verdict of the jury, or to show cause to the contrary; and upon the return of the mayor to this writ, a peremptory mandamus was awarded. This proceeding of the Circuit Court was at the instance of Waddingham and Laveille. McKee took no part in it, and the mayor was directed to grant a new trial to Waddingham and Marshall Brotherton, who had succeeded to the rights represented by Laveille. The mandamus recited the fact that an assessment for fifteen dollars had been made, and how it had been distributed among the three property holders, as above stated, and directed that the assessment be set aside. In pursuance to the mandamus, the...