Neil v. Independent Realty Co.

Decision Date16 September 1927
Docket NumberNo. 25938.,25938.
Citation298 S.W. 363
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by C. W. Neil and others against the Independent Realty Company to determine the title to land. From a judgment for plaintiffs, defendant appeals. Affirmed.

German, Hull & German, of Kansas City, for appellant.

Hulbert H. McCluer, of Kansas City, for respondents.


Action to determine title to the following tract of land in Kansas City, viz.:

"A strip of land twelve and one-half (12½) feet in width, being south twelve and one-half (12½) feet of land of the following lots: Lot eight, twenty-one, and twenty-two (Nos. 8, 21, 22), in Mayfield, in addition to Kansas City, Mo."

The petition is the ordinary petition to ascertain and determine title. We give the particular description of the land because of the peculiar state of the record.

Defendant, after admitting its corporate capacity, admitted that "it claims some title. estate or interest in and to the premises described in plaintiff's petition," and avers that it "claims to be the owner thereof and to have all the title, estate, and interest therein."

Further answering, it denied each and every other allegation of plaintiff's petition and prayed to be discharged with costs. The case was tried before the court, without a jury, upon an agreed statement of facts.

Not that it is material now, but the record so shows, and we give it as a fact in the case history, that at the first hearing the trial court found for defendant, but at a second hearing and trial (upon the same facts) the trial court found for plaintiffs and decreed title in them. From this judgment defendant brings the case here.

The agreed statement of facts is of some length, and apparently is made up largely of excerpts from an abstract of title. Counsel on both sides say that there is but a single question involved in the case, and the necessary facts can be shortly stated. An important agreed fact is thus stated:

"The common source of title of plaintiffs and defendant is William B. Clarke, who died owning the property subsequently acquired by both plaintiffs and defendant. Upon his death the title vested in his widow, Kate Rockwell Clarke, who, for the purposes of this suit, may be regarded as the common source of title."

July 20, 1904, the said Clarke and wife filed a plat of Marlborough Heights, which is fairly represented by the following:


Note the boundary streets; i. e., Seventy-First street on the north, Seventy-Second street on the south, Prospect avenue on the east, and Olive street on the west. There was no street between the north and south halves of the platted area.

On September 1, 1908, Kate Rockwell Clarke deeded lots 1 to 4, both inclusive (north half of the platted area), to Allen D. Bonnifield, and April 14, 1909, she deeded lots 5 to 8, both inclusive (south half of the platted area), to Wm. J. Phelps. After these deeds, the north and south halves of Marlborough Heights took separate courses so far as title is concerned. They have never been owned thereafter by the same party or parties. Plaintiffs claim under the Bonnifield title to north half of the platted area of Marlborough Heights, and the defendant through the Phelps title to the south half, and other things which we will note later.

On March 30, 1909, Frederick H. Wood, a successor in title of Bonnifield, filed a plat of Marlborough Slope, described as a resurvey of lots 1, 2, 3, and 4, of Marlborough Heights, which plat contains the following provisions:

"The streets and avenues as represented in this plat are hereby dedicated to public use forever."

And such plat (without the lot subdivisions therein and thereof) is fairly represented by the following:


The 25 feet in Seventy-First street terrace was the south 25 feet of the north half of the original platted area of Marlborough Heights. It passed by deed to Bonnifield, and In thence by mesne conveyances to Wood, who had it resurveyed and platted as Marlborough Slope. This strip of 25 feet never was a part of the south half of Marlborough Heights.

Later, Seventy-First street terrace was vacated by the city of Kansas City, through whose efforts we think immaterial, although the record shows defendant is the successor in title to the south half of the platted area of old Marlborough Heights, which original deed to Phelps conveyed the land to the south line of what afterward became Seventy-First street terrace. So, of course, the land now owned by defendant adjoined the south line of Seventy-First terrace—when such street existed, and before its vacation—Marlborough Slope afterward became Mayfield, the plat of Mayfield, among other things saying:

"This is a resurvey of Marlborough slope and vacated Seventy-First street terrace from Olive street to Prospect avenue, in Kansas City, Mo., reference being had to said plat on file in the office of the recorder of deeds for Jackson county, Mo."

This plat of Mayfield therefore covered the original north half of Marlborough Heights as deeded by Mrs. Clarke to Allen D. Bonnifield, and no more.

The contention of the defendant is that by virtue of the plat of Marlborough Slope (showing the public street of Seventy-First street terrace) and by reason of the later vacation of such street, it, as an adjoining owner of lots, became entitled to the south one-half of the 25 feet in the street so vacated. So far as we see, this is the real point in issue. Respondents contend contra.

Recalling that all of' Seventy-First street terrace was, at the date of dedication, a part of the land belonging to the dedicator and the initial grantor in plaintiff's line of record title, a fair and equitable rule would seem to be that, upon its vacation, the whole title would revert to plaintiffs, as successors in title. For this rule there is much reason and much authority.

The general rule as announced by the common law was that the adjoining owners each held title to the center of the road or street, but this was founded upon the presumption or assumption that the parties had each contributed equally to the street or highway. This was not a hard and fast rule, but the presumption could be rebutted by the facts. An illustrative and leading case is Watrous v. Southworth, 5 Conn. loc. cit. 310 (star page), whereat it is said:

"It is a general rule of the common law that the fee of the land over which a highway passes is owned equally by the owners of the adjoining ground. Stiles et at v. Curtis, 4 Day [Conn.] 328; Peck v. Smith, 1 Conn. 103(a) . This rule, however, is not artificial, and of positive institution, but is founded on the presumption, in absence of proof, that the highway was originally granted, by the adjoining proprietors, over their land, in equal proportion. This is not a presumptio juris et de jure, but a reasonable presumption, based on probability. Where is appears, however, that the highway was laid wholly over the land of one person, the presumption is annulled; and to hold, by inference, against fact, that the fee of one person should be extended beyond his land, and of the other restrained to narrower limits, because he had been paid for a right of passage over a part of his soil, would be a most inequitable fiction, in opposition to the established maxim, that in fictione juris semper existit æquitas. I can conceive of no principle of policy or general convenience that countenances so wanton a sacrifice of private justice.

"In the before-cited case of Peck v. Smith, p. 127, it was said, by Edmond, J., that to any general rule that can be adopted in relation to highways there must be exceptions; and with the same learned judge I fully concur in the following observations: `A. owns a piece of land; a highway is laid across the middle of it; the fee remains in A. Again, A. and B. own land adjoining; a highway is laid wholly on A.'s Hand, but bounding on the land of B. Here, it is clear, the fee of the way remains in A., as much as in the first case; for laying a servitude on the land of A. cannot transfer any part of the fee to B., although, by laying out the road, B. has become an adjoining proprietor. Take one case more: A. owns land; B. owns land adjoining on each side of it; the whole of the land of A. is laid out for a road. Will it be said, in such case, that the fee is transferred from A. to B.? I think it cannot be said with reason, because proof of such a set of facts in respect to the laying out of the road, and the circumstances of ownership continuing the same, as at the time of the laying out, rebuts and oversets entirely the presumption, that the road was originally laid on B.'s land, or the land of those under whom he claims.' To the same effect was the opinion of the late Ch. J. Swift, delivered in the before-mentioned case."

The case of Watrous v. Southworth, supra, is cited with approval by Church, C. J., in Read v. Leeds, 19 Conn. loc. cit. 187. In Healey v. Babbitt, 14 R. I. loc. cit. 534, it is said:

"In Hughes v. Providence & Worcester Railroad Co., 2 R. I. 493, 512, this court laid down the rule governing the construction of deeds in cases of lands bounded on highways in the following language, namely: `This court have repeatedly ruled, and it may now be considered the settled policy of the state, that where a deed bounds the grantee to, by, or on, a highway, * * * the presumption of law is, that the grantee takes the fee of the soil to the center of the highway * * * if the grantor, at the time, owned the fee to the center, subject to the right of the public in the easement; unless there be established monuments, or other clear description in the deed, to rebut this presumption, and show that the intention was to limit the grant to the line...

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