O'neil v. City of St. Louis

• Decision Date: 02 March 1880
• Citation: 8 Mo.App. 416
• Parties: JAMES O'NEIL, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 416

JAMES O'NEIL, Respondent,

v.CITY OF ST. LOUIS, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 2, 1880.

1. Where no instructions are asked and no exceptions taken, the only assignment of error below being that the judgment was against the law and the evidence, the judgment will not be disturbed if it can, on any ground, be justified.

2. Stones set by a surveyor for boundaries control the calls for distances.

3. Lands vested in municipalities while the Limitation Act of 1855 was in force were subject to the bar of the statute.

APPEAL from the St. Louis Circuit Court.

Affirmed.

LEVERETT BELL, for the appellant: The testimony does not establish adverse possession as against the city. The western fence of plaintiff was located on the street, and the plaintiff did not claim to own to the fence.--See Lane v. Kennedy, 13 Ohio St. 42; Simmons v. Cornell, 1 R. I. 519. The enclosure and occupation of land within the limits of a public street will not transfer the title from the municipality.-- City v. Canal Co., 12 N. J. Eq. 561; 2 Dill. on Mun. Corp., sects. 528-533.

R. E. ROMBAUER, for the respondent: Boundaries actually marked upon the land control courses and distances.-- Campbell v. Clark, 8 Mo. 553, 555; Whittelsey v. Kellogg et al., 28 Mo. 404; Brown et al. v. Hughes, 21 How. (U. S.) 306. Where the description given of the land sold is the number of a lot in a survey or tract of land, or the plan of a town or an addition to the same, the authentic map of the survey is as much a part of the deed as if set out in it.-- Dolde v. Wodicka, 49 Mo. 98; Rutherford v. Tracy, 48 Mo. 325. And the statute of 1865, which went into effect August 1, 1866, has no application to cases where the right of action or entry accrued before it went into effect, being purely prospective in its operation.-- Abernathy v. Dennis,, 49 Mo. 468, 471; School Directorsv. Goerges, 50 Mo. 194, 196; County of St. Charles v. Powell, 22 Mo. 525; Wickersham v. Woodbeck, 57 Mo. 59; Nelson v. Chariton County, 60 Mo. 387; Callaway County v. Nolley, 31 Mo. 393.

HAYDEN, J., delivered the opinion of the court.

In this case no instructions were asked or exceptions to the admission of evidence taken, and the only point preserved is, that in the motion for new trial it is assigned as error that the judgment was against the law and the evidence, and should have been for the defendant. The presumption is in favor of the judgment, and it must stand unless it affirmatively appears that the judgment cannot upon any ground be justified. The action is trespass to real property, and involves the title to a strip of ground in city block of the city of St. Louis No. 1039, which strip, before the suit was commenced, was occupied by the plaintiff, and which the defendant claims is a part of the street called Page Avenue. The plaintiff projected a building, a part of which was to be upon this strip, and was proceeding to erect the house when the defendant, under city ordinance No. 10,749, providing for the removal of obstructions from the streets, interfered, and the present action was brought. It is not disputed but that the plat and dedication of the commissioners, filed in the recorder's office of St. Louis County, on July 3, 1854, of this subdivision of section 16, township 45, of range 7 east, dedicating to public use certain streets named on the plat, which plat is referred to in plaintiff's deeds, was sufficient to vest the title to Page Avenue in the city. It is the location of Page Avenue that is disputed. It seems that by measurement on the ground the distance between the eastern and western boundary line of this subdivision, as shown by the plat, is short about three feet and ten inches, which distance corresponds to the strip in dispute. The argument from the plat necessarily leaves the proper location of Page Avenue in doubt. Taking the eastern boundary of the tract as the decisive line, and proceeding according to the plat, the projected building would be on the plaintiff's land. On the other hand, if the western boundary be adopted, and the distance thence run eastwardly, the plaintiff's building would then be upon Page Avenue to the extent of three feet ten inches. Resorting to the actual survey as made by the surveyor whom the commissioners employed, the evidence tends strongly to show that stones set by him as a boundary designated the line of Page Avenue as it is claimed by the plaintiff to be. If the boundaries were thus marked upon the land, they control the call for distances. Campbell v. Clark, 8 Mo. 554; Whittelsey v. Kellogg, 28 Mo. 406. These stones were supposed to have been set by the surveyor as locating the western line of Page Avenue. Several...