Minium v. Solel

• Decision Date: 29 February 1916
• Docket Number: No. 16943.,16943.
• Citation: 183 S.W. 1037
• Parties: MINIUM v. SOLEL et al.
• Court: Missouri Supreme Court

183 S.W. 1037

MINIUM v. SOLEL et al.

No. 16943.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Mercer County; Geo. W. Wanamaker, Judge.

Action by Matilda Minium against Frank Solel and others. From a judgment for defendant Frank Solel, plaintiff appeals. Reversed and remanded.

Platt Hubbell and George Hubbell, both of Trenton, for appellant. Ben F. Kesterson, of Princeton, and E. R. Sheetz, of Trenton, for respondent.

BROWN, C.

Suit was brought upon section 2535, Revised Statutes of 1909, against the city of Princeton, Henry P. Cisco, its marshal, and Frank Solel, to quiet and establish title to a strip of ground 10 feet wide and 125 feet long off the east side of lots 6 and 39 in block 8 of Peter Cain's addition to the city of Princeton. The petition asserts title in fee in the plaintiff and the claim of defendants of the right to use the same as an alley, which it denies, and prays the court to ascertain, determine, and adjudge plaintiff's title and interest in the land and for general relief. Cisco, who was sued in his official capacity, died without having filed answer, and his name was dropped from the case. The city of Princeton did not plead. No default was taken against it. Solel filed an answer in two counts. The first asserted that the strip of land in question was and had been for 30 years a public alley of the city of Princeton used by the traveling public as such; and that public labor and money had been expended on it by the city of Princeton in the construction of sidewalks and crossings which were maintained by the city; and that the plaintiff had closed it by erecting fences and gates across it at each end, so that it could not be traveled by the general public. It asks that the court declare it to be a public alley, and that plaintiff has no interest in it. The second count avers that the strip was and had been a right of way appurtenant to the land purchased and owned by defendant adjoining the east side of it and passed to him by purchase from plaintiff's predecessors in title. He asks that the court so declare, and for damages for his deforcement. All this was denied by reply. When the case was called for trial on September 14, 1911, the plaintiff and defendant Solel answered ready, and a jury was called at the instance of defendant, and the trial proceeded before it against the objection of plaintiff, who asked that the cause be tried by the court without a jury, to which the plaintiff excepted.

Block 8, in which the land in controversy is situated, is 475 feet long from east to west between Truax street on the east and Granger street on the west, and 125 feet wide fronting on Hickland street on the north and Main street on the south. The lots are 25 feet wide from east to west and 62½ feet long; there being two tiers of 19 lots each, one fronting north on Hickland street, and the other fronting south on Main street and abutting each other at the middle line of the block. There are five lots in width between the strip in question and Truax street at the east end of the block, consisting of lots 1, 2, 3, 4, and 5 of the north tier fronting on Hickland street, and lots 40, 41, 42, 43, and 44 of the south tier fronting on Main street. Solel owns 6 lots lying immediately east of the strip, being 75 feet in width, running from street to street, while the plaintiff owns four lots immediately west of the strip, being 50 feet in width including the strip, or 40 feet exclusive of it. The source of title was Mrs. Irene W. Johnson, who had owned the land for many years before she sold it to plaintiff and Solel, and resided for a time on the four lots now owned by plaintiff. The Solel lots were improved and occupied before he purchased them by tenants of Mrs. Johnson. She sold lots 40, 41, and 42 to Solel in 1905, the deed being made by William Burr, her nephew, in whom the title stood, and conveyed him the three lots fronting on Hickland street in 1908. After purchasing the lots, Mr. Solel continued to improve them, and apparently resided on them. In 1911, Mrs. Johnson conveyed the four lots, including the disputed strip and 40 feet lying west of it, to plaintiff.

Mrs. Johnson was a witness for plaintiff at the trial, and testified that 15 or 20 years before the trial she had a fence on the land between the lots now owned by plaintiff and Solel respectively, and at that time she placed a fence 10 feet west of it extending from Main to Hickland street and opened up the inclosed strip to both streets. In answer to the question: "State whether or not you intended to and did donate it to the public," she answered: "No, I did not say anything about it; it was left open at each end so the people wanting to go through that way could." She further stated that this strip had been used by people living on each side of it, and any one else that wished to go through there could; it being open on each side. When she was ordered to construct sidewalks along the front of her property, she did not put a walk across the opening of this space, but the crossing was graded and put in by the city. She called it an alley, and said that her object in opening it, "self-evident to anybody," would be to make it convenient for the persons living in the houses, and that she left it so that if the public wanted to go through they could, and that it was sometimes so used. She planted a row of trees inside the fence on the Solel lot, and also in planting trees on the west side put them west of the fence leaving the alley clear. She states that, of course, she did not want to get in the alley with the trees. So far as the question of dedication is concerned, her evidence seems to cover the ground completely, making it unnecessary to mention the statements of other witnesses, none of which tended to dispute her.

After the evidence was all in, the plaintiff asked a peremptory instruction, which was refused, and she duly excepted. Thereupon the court gave all the instructions as asked by plaintiff which properly put the case to the jury solely on the theory of dedication by the owner to public use and also upon the theory of the acquisition of a public use by limitation. Defendant asked instructions on the same theory only, which were given. The verdict was for the "defendant."

The judgment, after reciting the verdict, was as follows:

"It is therefore ordered, adjudged, and decreed by the court that the plaintiff take nothing from defendants by reason of this suit, and that defendant Frank Solel shall have the right to use the 10-foot alley in dispute as a public alley, and that the costs herein expended be taxed against plaintiff and that hereof execution issue therefor."

The motion for a new trial contained no reference to the objection to a trial by a jury.

1. The plaintiff complains that the cause was submitted to a jury against her objection. While she took exception to this at the trial, she seems to have dropped it at that point. No mention is made of it in her motion for a new trial. Her counsel call attention in this connection to their action in requesting the court to instruct the jury to find a verdict in her favor, and its refusal to do so, which is one of the grounds upon which a new trial was asked; but surely asking a verdict from the jury cannot be said to amount to an objection to submitting the case to its determination.

While this disposes of the point so far as it is presented as a ground for reversal in this court, it may possibly be important in determining the effect of the verdict in the consideration of the case upon its merits. The question is whether it comes within the classification in sections 1968 and 1969 of the Revised Statutes of 1909, which provide that "an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived or a reference ordered," and that "every other issue must be tried by the court."

It is pointed out by the appellant that this action is brought under the provisions of section 2535 of the Revised Statutes of 1909; that under this section the action may be brought when neither party is in possession; that its primary object is to define and adjudge by the judgment or decree the title, estate, and interest of the parties severally "in and to the real estate involved in the proceeding"; and that section 1968 authorizes the trial by jury of possessory actions only, that is to say, actions in which the recovery of the land itself is the sole object, and not those actions in which a decree defining and establishing the title is sought, without any change in the possession. It is said that this is a remedy which equity alone could formerly afford, and that the case falls within the class which must be tried by the court. This is a reasonable construction of the words we have quoted, standing alone, in their application to a case of this character, in which the plaintiff is already in possession and is only seeking a judicial declaration of her right.

So far as we have been able to ascertain, this question first came before this court in Lee v. Conran, 213 Mo. 404, 111 S. W. 1151...