Pierce v. Chamberlain

• Decision Date: 31 October 1884
• Citation: 82 Mo. 618
• Parties: PIERCE v. CHAMBERLAIN et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 618

PIERCE

v.CHAMBERLAIN et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Jewell & Thompson for appellants.

(1) No statutory dedication is claimed, nor was there a common law dedication. As to what constitutes a common law dedication, see Brinck v. Collier, 56 Mo. 160; 2 Greenleaf on Ev., (13 Ed.) p. 591, § 662. (2) There was no acceptance; but the intention, more or less clearly expressed in deed to Holmes, was revoked. As to right to revoke, see 8 Minn. 494; 31 Cal. 589; 1 R. I. 519. (3) The evidence of revocation consists of the deed without reservation from Holmes to defendants, (as in Minnesota case cited,) also the unconditional warranty deed from Marty to defendants of twelve and a half feet in width of the land in dispute, given at a time when he and defendants owned the whole of the land through which Marty afterwards platted such street. Also payment of taxes, both by Holmes and subsequently by defendants to present time. As to effect of payment of taxes, see Brinck v. Collier, 56 Mo. 166.

J. W. Jenkins for respondent.

(1) There was a complete and entire dedication of the land for the street. The vital principle of dedication is the intention to dedicate, and when this is unequivocally manifested the dedication, so far as the owner of the soil is concerned, has been made. Angell on Highways, (2 Ed.) ch. 3, § 142, p. 146; 2 Greenleaf Ev., (13 Ed.) § 662, p. 591; Brinck v. Collier, 56 Mo. 160; Missouri Institute, etc., v. Howe, 27 Mo. 211; Becker v. St. Charles, 37 Mo. 14. A dedication may be made to take effect in the future. Jersey City v. Morris Canal Co., 1 Beasley (12 N. J. Ch.) 547. No immediate acceptance by the public was necessary. Rose v. City of St. Charles, 49 Mo. 510; Taylor v. City of St. Louis, 14 Mo. 20. Selectmen, etc., v. Dummer, Spencer (N. J.) 106; Jersey City v. Morris Canal Co., supra. No grantee is necessary in a deed of dedication. Jersey City v. Morris Canal Co., supra; Cincinnati, etc., v. White, 6 Pet. 431. Both Holmes and Marty, by accepting the deeds containing the dedication, assented to such dedication, and they and their grantees are bound by it. Jersey City v. Morris Canal Co., supra. (2) There has been no revocation of the dedication. Jersey City v. Morris Canal Co., supra; Selectmen v. Dummer, supra.

NORTON, J.

This suit was brought to restrain defendants perpetually from obstructing a street. Judgment was rendered for plaintiff according to the prayer of the petition, from which defendants have appealed to this court, and the questions presented by the appeal are, whether the strip of ground claimed as a street had been dedicated by the owner, and if dedicated, whether the dedication had been accepted, and whether such dedication had been revoked before acceptance.

It appears from the evidence that in February, 1875, Mary S. Peery, Mary J. Bouton and Sarah A. Peery, who were the owners in fee of a tract adjacent, or near, to Kansas City, conveyed by deed to Robert J. Holmes a part of said tract, embracing said street, which was recorded in the recorder's office of Jackson county on the 9th of April, 1875. Following the granting clause in this deed are the following words: “We also grant, bargain and sell, convey and confirm, forty feet in width for the purpose of a street extending from Independence Avenue to the north line of the foregoing tract of land, except twenty feet in width and 546 in depth of the above tract of land which the said Robert J. Holmes grants, bargains and confirms for the purpose of being used as a part of said street; said street not to be opened so long as said lands through which said street passes may be used for cultivation; said street to extend on north and south line parallel with north and south line of above tract of land and along the east, north and south line of said tract of land.” The Peerys and Bouton continued to be the owners of the remainder of the land adjoining and including said street until the 23rd day of September, 1878, at which time they conveyed the same to one Marty by warranty deed, which contained the following reservation: “Excepting a forty foot street through said land from north to south, beginning at Independence Avenue on the south line of said land at a point supposed to be the center of said south line, running thence north parallel with the section line...