Pickett v. Town of Mercer

• Citation: 80 S.W. 285,106 Mo. App. 689
• Court: Court of Appeal of Missouri (US)
• Decision Date: 04 April 1904
• Parties: PICKETT et al. v. TOWN OF MERCER.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 285

106 Mo. App. 689

PICKETT et al. v. TOWN OF MERCER.^*

Kansas City Court of Appeals. Missouri.

April 4, 1904.

TOWNS — PARKS — PURCHASE OF LAND — USE — DEEDS — CONSIDERATION — PAROL PROOF — TOWN OFFICERS — INDIVIDUAL STATEMENTS — POWERS.

1. Parol evidence is admissible to show an additional valuable consideration to that recited in a deed.

2. Where a deed conveyed land to a town in fee, and did not specify any particular purpose for which the land was conveyed, an antecedent agreement that the land should be used as a street could not be construed as constituting any part of the consideration, since such agreement was in contradiction of the granting clause in the deed, and was a limitation on the estate conveyed.

3. Where taxpayers voted money to purchase certain land in controversy for a public park, and not for a street, its use as a park being wholly inconsistent with its use as a street, the village trustees had no authority to divert the use of the property bought with the funds to street purposes.

4. Where land was bought by a town for park purposes, the fact that persons drove their teams over and secured them on the ground for a period less than the time required to obtain title by prescription was not relevant to show a dedication of the land for street purposes.

5. Where property was sold by plaintiffs and others to a town for park purposes, and the deeds did not restrict the use of the property by the town, the grantors were not entitled to rely on the individual statements of members of the board of trustees as to the use to which the land would be devoted.

Appeal from Circuit Court, Mercer County; Paris C. Stepp, Judge.

Action by W. A. Pickett and another against the town of Mercer. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

H. H. Dudley, Read & Alley, and Orton & Orton, for appellant. E. M. Harber and Ira B. Hyde & Son, for respondents.

BROADDUS, J.

The town of Mercer, defendant herein, is a village in the county of Mercer, and incorporated under the provisions of article 6, c. 91, Rev. St. In August, 1901, the board of trustees of the village submitted to the voters thereof a proposition to purchase a tract of land within its limits for use as a public square, and for that purpose to create a debt in the sum of $1,000. The proposition was carried at the election by the requisite majority. In pursuance of the authority conferred by said election, the said board of trustees purchased from the plaintiffs the lands in controversy, and the plaintiffs by several warranty deeds conveyed the same in fee simple to the defendant. The deeds are in the ordinary form, and specify no particular purpose for which the lands are conveyed, and recite a money consideration. The ground so conveyed by plaintiffs consisted of lots numbered 1, 8, and 7, in block 2, fronting east on State street. Plaintiffs also owned lots 2 and 3 in said block west of said lots conveyed to defendant, on which they erected a store building facing the lots they sold to the defendant, but about eight feet from the east line thereof. In June, 1902, the board of trustees made an order to inclose its said land, called a public square, by a row of hitching racks on the north, east and south sides thereof. On hearing of the order the plaintiffs commenced this suit, and obtained a temporary injunction restraining defendant from erecting said hitching racks. The court made a finding of facts, which, as it is not objected to, we will adopt for the purposes of the case. It is as follows: "(1) The ground bought by the defendant for public grounds of plaintiffs and others was 94¼ feet east and west, by 264 feet north and south, and was bounded on the north, east, and south by streets, and on the west by land owned by plaintiffs and others. (2) That before the purchase of said land for public ground there had been a fire in the town of Mercer, which had destroyed a number of buildings, among which was the store building of plaintiffs, which was situated on the north part of said public grounds, fronting east on State street. (3) That, just before the purchase of said ground by the defendant, plaintiffs were about to erect a new storehouse on lot No. 1 and part of lot No. 8, being the north part of said public ground, where their storehouse recently burned had stood, and fronting east on State street. (4) That defendants proposed to plaintiffs and the other owners of said ground to buy the same for public grounds, and plaintiffs and other owners agreed to sell the same for that purpose, to be forever kept and used as in the next paragraph stated. (5) That it was represented by the officers and agents of defendant, who negotiated for said land and purchased the same, and understood by plaintiffs and by the citizens of said town (there being no evidence whatever to the contrary), that said land was to be forever dedicated and used for the following uses and purposes, viz.: To widen the street on the east of it, so as to give more room for teams; to leave more open space, so as to decrease the danger of fire; to leave it open and uninclosed, so that the public could drive over and across...