Moses v. St. Louis Sectional Dock Co.

• Decision Date: 31 October 1884
• Citation: 84 Mo. 242
• Parties: MOSES et al., v. THE ST. LOUIS SECTIONAL DOCK COMPANY et al., Appellants.
• Court: Missouri Supreme Court

84 Mo. 242

MOSES et al.,

v.THE ST. LOUIS SECTIONAL DOCK COMPANY et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals

REVERSED.

Leverett Bell for appellants.

(1) Mrs. Moses, then Mary Atchison, and Henry Papin through whom plaintiff, Harriet Papin, claims, having executed and acknowledged the instrument of 1851, there was no necessity for the city of St. Louis to attempt to agree with the parties before condemnation as required by the rule laid down in Anderson v. St. Louis, 47 Mo. 479. (2) The eastern two-thirds of the property sued for was conveyed to the city for wharf purposes by the grant of 1851. The city took possession of it in 1859, and has held and used the same since for purposes of building and repairing boats engaged in navigating the western rivers. So far as said eastern two-thirds of the property sued for is concerned it was unnecessary to make Mrs. Moses and Mr. Papin parties to the condemnation proceedings. The city had already in 1851 acquired the title of these parties to the part of the premises sued for. (3) The plaintiffs are estopped from claiming any of the property embraced in this suit by the deed of July 11, 1871, by which S. Gratz Moses and Mary Moses his wife, and Henry Papin and Harriet Papin, conveyed to R. G. Nixon and others, in consideration of $15,000, block eight hundred and sixty-nine immediately west of and adjoining the property sued for, and in which they described said block as bounded on the east by the west line of Front street. Front street and the wharf are synonymous terms. Parker v. Smith, 17 Mass. 413; Fox v. Refinery, 109 Mass. 292; Tufts v. Charlestown, 2 Gray 271.

E. P. Johnson and George W. Hall for respondents.

(1) The proceedings under ordinance 5403 were void, no effort having been made prior to the proceedings to condemn, to agree with the owner as to the sale of the property. Anderson v. St. Louis, 47 Mo. 479. (2) The instrument of 1851 did not obviate the necessity on the part of the city to attempt to make above agreement, besides the city did not accept it or act under it. (3) Defendants have not acquired title by adverse possession. (4) The evidence shows a wharf has never been made at that point. (5) Plaintiffs are not estopped by the recitals in the deed to Nixon of February 11, 1871. To be estopped the plaintiffs must have plainly recognized the wharf in the deed as an appurtenance to the property conveyed; this they did not do. Both Mrs. Moses and Mrs Papin at the time of the deed to Nixon were married women, against whom the doctrine of estoppel cannot be invoked. (6) The question whether respondents had been divested of the rights was one of fact and cannot be reviewed here. De Graw v. Prior, 54 Mo. 313; Weilandy v. Lemuel, 47 Mo. 322.

BLACK, J.

This was an action of ejectment for a small piece of land, parcel of south wharf in the city of St. Louis. The cause was tried by the court, without a jury, and the plaintiffs had judgment for the undivided two-thirds of the property sued for, which judgment was affirmed pro forma in the court of appeals. On trial the parties stipulated that the plaintiffs were the “owners jointly of an undivided two-thirds interest in the premises sued for and entitled to recover possession of the same in this action, unless their title had been divested by the proceedings to open the south wharf under ordinance 5403, and the subsequent proceedings and adverse possession thereunder.”

The defendants read in evidence an ordinance, approved February 6, 1847, declaring Front street to be a part of the wharf; an ordinance approved March 29, 1851, which fixed the boundaries of Main street, the wharf, Front street, and extended various cross streets eastward to the wharf. This ordinance made the west lines of Front street and the wharf the same line, and two hundred and sixty-five feet distant from the east line of the wharf. Provision is thereby made for opening these streets and the wharf, or any part thereof, as soon as the owners of the ground should release the same to the city for such purposes; also, an instrument, not under seal, dated in 1851, signed by Henry Papin, Mrs. Moses, then Mrs. Atchison, a widow, and by various other persons. This instrument was duly acknowledged by Mrs. Moses in 1853, and recorded March 20, 1857. It referred to the ordinance of March 29, 1851, and a plat which was a delineation of these streets and the wharf as designated and defined in the ordinance. It dedicated the property owned by those who signed it, within the boundaries of Main and the cross streets, to public use, and authorized the city to locate and construct a wharf, as designated on the plat, upon their property, and dedicated to public use the property so to be taken for purposes of a wharf.

Ordinance number 5403, approved August 6, 1864, and mentioned in the stipulation, again defined the boundary lines of the wharf and directed the land commissioner to cause the land within these boundaries to be opened. Proceedings to condemn this and other property were commenced on September 17, 1866, and carried on, apparently without regard to the former dedication, and the verdict of the jury was confirmed by ordinance, approved July 2, 1867. Damages were allowed to the owners of this property, and they were assessed with a like amount of benefits on adjacent property. This property, as yet, has never been improved for or used as a wharf. The city took possession, certainly, of that described on the plat, in 1859, and leased it to a dock company, of which the present defendant is the successor. The property has been thus leased from that time to this and used in connection with their business of repairing boats, except the western part, which has been kept open as a road way and is called Front street. The proceedings to condemn and ordinance 5403 included about one hundred feet more of the...