Missouri Inst. for the Educ. of the Blind v. How

• Decision Date: 31 March 1858
• Citation: 27 Mo. 211
• Parties: MISSOURI INSTITUTE FOR THE EDUCATION OF THE BLIND, Respondent, v. How et al., Appellants.
• Court: Missouri Supreme Court

27 Mo. 211

MISSOURI INSTITUTE FOR THE EDUCATION OF THE BLIND, Respondent,

v.How et al., Appellants.

Supreme Court of Missouri.

March Term, 1858.

1. A clear intention to dedicate is necessary to constitute a dedication of land to the public.

2. To authorize the presumption of an intention to dedicate land to the public as a street, there must be either an acquiescence by the owner for twenty years in the free use and enjoyment of such land as a public street, or such clear, unequivocal and decisive acts as will amount to an explicit manifestation of his will to make a permanent abandonment and dedication thereof to the public.

Appeal from St. Louis Land Court.

This was an action in the nature of an action of trespass quære clausum fregit, instituted September 26, 1856, to recover damages for an alleged wrongful entry upon certain premises described as block No. 3, in N. P. Taylor's addition to St. Louis. The defendants, in their answer, pleaded, substantially, not guilty; that plaintiff had no property in the locus in quo; and that the premises were a part of a public street, dedicated to public use prior to the alleged trespass by plaintiff and those under whom he claims. The gist of the defense is that the public had a right of way over the premises.

The premises in controversy formerly belonged to William Christy. N. P. Taylor acquired title under said Christy in 1837. In the deed of said Christy the land conveyed was described as lot No. 29 in the “plan of apportionment” of his property among his children. Taylor subdivided said lot No. 29 into lots, and it formed part of “N. P. Taylor's addition to St. Louis.” The said lot 29 was designated as block No. 3 in the plat of said partition. In 1838 Taylor conveyed said block to Ruland. Ruland dying in 1850, the title passed to his heirs, under whom the plaintiff acquired title through various mesne conveyances in the year 1854. When Ruland purchased in the year 1838, he took possession and made enclosures, but did not enclose the portion (about 25 feet) on the west side of the block, which is the subject of controversy in this suit. During the same year, Ruland employed Cozzens (a surveyor) to survey the property in order to ascertain its true location. Cozzens made the survey, and informed Ruland that his lot (block 3) extended about 24 1/2 feet further west than he (Ruland) had supposed or had enclosed. Ruland, however, thought he had enclosed the ground he had purchased from Taylor, but said he was entitled to 218 feet on Morgan street through to Franklin avenue. He insisted that he was entitled to 218 feet, and said that if any one claimed of him on the east, he should claim his quantity on the west. The same surveyor surveyed the premises again in 1846, with the same result. At the time Taylor laid out his addition, and up to the year 1856, the premises were without the limits of the city of St. Louis. At the time of the alleged trespass they were within said limits. After the plaintiff acquired title, in the years 1855 and 1856, the plaintiff put up a new fence, enclosing about 24 feet on the west that had not been previously enclosed. It is upon this piece of land that the defendants, How and Ruggles, entered, and removed this fence. Said How was, at the time, mayor of the city of St. Louis. Ruggles acted under and by orders of said mayor.

The deeds constituting plaintiff's chain of title (executed by various parties since the death of Ruland) describe the property substantially alike, viz: As lots 1 to 14 inclusive, in block No. 3, in N. P. Taylor's addition, fronting 218 feet on Morgan street, extending to Franklin avenue, bounded north by Franklin avenue, east by Swearingen, south by Morgan street, and west by Twentieth, sometimes called Nineteenth street. When division was made among the children of Christy, and when Taylor acquired title to lot 29 in 1837, there was no street named or known on the west side of said lot, nor did Taylor, in making or platting his addition, name or recognize any street on the west of his addition. There was evidence tending to show that there was a street thirty feet wide on the west side of said block No. 3. There was some evidence tending to show that the public had used the locus in quo as a public street or thoroughfare. The evidence on this point was conflicting.

The court, at the instance of plaintiff, gave the following instructions: “1. Unless the jury find from the evidence that the present or former proprietor of the premises in question did some affirmative act showing an intention to dedicate the same to public use as a highway, then the said premises have not become a highway, and the public have not acquired the right of way over the same. 2. Although the jury may find from the evidence that the defendant, John How, at the time of the alleged trespass, was mayor of the city of St. Louis, and acted in his official capacity as such mayor in all that he did in respect to entering the premises in question; and although his co-defendant, in all that he did in respect to said premises, acted under and in obedience to the orders and directions of said mayor, yet they are liable to this action if the plaintiff was in possession and the defendants entered upon said premises against the consent of the plaintiff and tore down and removed the fence, unless there was at the time of the alleged entry a public road, street or public way over said premises; and the burden of showing that there was such a public road, street or public way rests on the defendants.”

At the instance of the defendants, the court gave the following: “3. That if the fence erected by the plaintiff was located in a public street, then the defendant, John How, as mayor of the city, had a right to cause the same to be removed. 4. That if the jury believe from the evidence that General Ruland, or those who claim under him, dedicated the land, upon which plaintiff erected the fence, to the public use, they will find for the defendants. 5. That no particular form is necessary in the dedication of land to the public use; all that is required is the assent of the owner of the land; and the fact of its being used for the public purposes intended by the persons so dedicating it. 6. That to determine whether or not Ruland, or any person claiming under him, ever assented to the dedication of Nineteenth alias Twentieth street to the public use, the jury have a right to take into consideration all the facts and circumstances of the case in proof. 7. In order to constitute trespass by the defendants, it is necessary that the plaintiffs show themselves in possession of the land west of the original fence made by Ruland; and if the plaintiffs have failed to show title to the ground, or possession of the ground, west of the original fence, they will find for the defendants.”

Defendants asked the following instructions, which were refused: “1. If the jury believe from the evidence that Gen. Ruland caused lot No. 29 to be surveyed, and directed the surveyor to commence in the centre of Twelfth street and run west, and caused the ground to be enclosed so as to embrace all he claimed of said lot, and that the fence removed by the authorities was outside of such survey and in a street called and known as Twentieth, alias Nineteenth street, they will find for defendant. 2. If the jury believe from the evidence that the street in controversy was used by the public with the assent of General Ruland, and that the deed from Ruland's heirs to Greene's...