Pim v. The City of St. Louis

• Decision Date: 12 June 1894
• Parties: Pim, Appellant, v. The City of St. Louis et al
• Court: Missouri Supreme Court

27 S.W. 525

122 Mo. 654

Pim, Appellant, v. The City of St. Louis et al

Supreme Court of Missouri, Second Division

June 12, 1894

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Leverett Bell, George J. Davis and Henry B. Davis for appellant.

(1) The plaintiff is not barred by limitation. Dyer v Wittler, 89 Mo. 81; Bradley v. Railroad, 91 Mo 498. (2) The evidence establishes that the land sued for was created by accretion to the Missouri shore of the river. Campbell v. Laclede Co., 84 Mo. 372; St. Clair Co. v. Livingston, 23 Wall. (U.S.) 66; St. Louis v. Railroad, 114 Mo. 13; St. Louis v. Lemp, 93 Mo. 477; Public Schools v. Risley, 40 Mo. 356; LeBeau v. Gaven, 37 Mo. 556; Smith v. Public Schools, 30 Mo. 290; Benson v. Morrow, 61 Mo. 345; Jones v. Soulard, 24 How. (U.S.) 41; Myers v. St. Louis, 82 Mo. 367. (3) The title under the Brazeau concession extended to the Mississippi river on the east, and covered all land to the water's edge, and the city could not, nor could any person, by filling or by building dykes, deprive the plaintiff of her riparian rights. Railroad v. Illinois, 146 U.S. 387; St. Louis v. Rutz, 138 U.S. 226; Wilkinson v. Dock Co., 102 Mo. 140. (4) There was no proof whatever of the existence of Duncan's island in 1835 (the date of the deed from Theodore Papin to Honore Picotte), and defendants' instructions numbers 1, 2 and 3, presenting this fact in connection with other facts as a basis for a verdict for defendants was erroneous. Stone v. Hunt, 114 Mo. 66; Gorham v. Railroad, 113 Mo. 408. (5) The proceedings to open the south wharf in St. Louis under ordinance 5403, are held by this court to be absolutely void, and it was error in the court below to permit them to be read to the jury. Wilkinson v. Dock Co., 102 Mo. 140. (6) A complete record title from the Spanish government in 1786, by inheritance and proper conveyances, is shown in plaintiff. (7) The city of St. Louis, the St. Louis Sectional Dock Company (respondents here), the Iron Mountain Railroad Company, and none of them, have any interest in or right to the premises in controversy, or any part thereof, by deed, possession, or in any manner whatsoever.

W. C. Marshall for respondent, City of St. Louis.

(1) Defendant's title by limitation began in 1858 during the lifetime of plaintiff's father, and has been continuous ever since; hence defendant has acquired title by limitation. (2) The land in controversy never was part of lot 2 of the United States survey 3078, nor is it an accretion thereto, but it is made up partly of what was formerly Duncan's Island and partly by filling the eastern half, beyond the thread of the slough or channel, which separated Duncan's Island from the main land.

OPINION

Burgess, J.

Ejectment for the possession of an undivided one-half interest in a lot of land in front of block 868 of the city of St. Louis, and between it and the Mississippi river, bounded east by said river, west by the east line of block 868, south by the north line of Trudeau street produced to the river, and north by the south line of Russell avenue produced to the river, and having a width from east to west of about three hundred feet, and a length from north to south of about three hundred and forty-six feet and six inches. The city answered, first, by general denial; second, claiming adverse possession since 1868, and a plea of the statute of limitations. Plaintiff, by way of reply, denied all the allegations in the answer. The St. Louis Sectional Dock Company made no appearance, and judgment, by default, was rendered against it on February 4, 1892. Upon a trial to a jury there was a verdict and judgment for the defendant from which plaintiff appealed to this court.

In 1786, Jos. Brazeau obtained a concession of a tract of ten arpens from north to south, bounded on the east by the Mississippi river. In 1799, he obtained a second concession. The concession was confirmed by act of congress in 1836. Plaintiff showed a derivative title from Jos. Brazeau for the land sued for, known as the Picotte tract, the north and south line of which, if extended eastwardly to the west bank of the Mississippi river as now defined, would include said land.

It is further shown that Honore Picotte owned lot 2 at the time of his death in 1860; that his wife died in 1869; that two children of said marriage survived their parents, of whom plaintiff is one, and her sister, a Mrs. Wilkinson, is the other; that plaintiff was married in 1865 to Dr. L. T. Pim, who died in 1888. The will of Honore Picotte was introduced in evidence by which all of his property, real and personal, was devised to his wife for life, with remainder in fee to the plaintiff and her sister, Mrs. Wilkinson.

The Brazeau tract is embraced in United States survey 3078, and plaintiff claims that the land in controversy is an accretion to that survey and particularly to lot 2. Upon the other hand, defendant claims that it is not an accretion but that it was formed by the city permitting the Iron Mountain Railroad Company to construct a trestle in the river in front of said survey, and thereafter by the railroad company, and the city, and the Sectional Dock Company, as the lessee of the city, filling up where the trestle ran, and finally filling the low ground between the embankment thus formed and what was known as Duncan's Island.

In 1835 the main channel of the river as shown by said survey was between Duncan's Island and the Missouri shore. The land sued for lies east of the channel as it was at that time. By filling up, Main street has been built in front of what was the eastern boundary of said survey and the wharf has been created in part by filling done by defendant and partly by taking in Duncan's Island. From 1870, to January 1, 1889, the Sectional Dock Company occupied the premises as the lessee of defendant city. There was also evidence that in 1884 the city of St. Louis rented the premises to the St. Louis Sectional Dock Company. In 1884, the city, by ordinance, granted permission to the St. Louis Transfer Railway Company to lay its tracks along the property. An amended franchise for the same purpose was granted said St. Louis Transfer Railway Company in 1885.

On the seventeenth day of June, 1870, plaintiff and her sister, Mrs. Wilkinson, by a deed in partition, divided block 868, and described it as follows, in the fifth paragraph of the deed:

"The north half of block 868 of said city of St. Louis, bounded east by the wharf, west by Main street, north by Picotte street, and south by the balance of the block," and by paragraph six, bounded the southern half of the block in the same way, the northern half being partitioned to Mrs. Wilkinson, and the southern half to Mrs. Pim.

The city showed by Thomas P. Morse that he had known the property in controversy intimately since June or July, 1858, and had seen it every day, except during the years 1869 to 1873; that in 1858 it was about two blocks from where the river was then to where it is now, that is, two blocks have been added since; that the city first constructed dykes from the main land to Duncan's Island, and subsequently, filled in between the dykes, thus connecting Duncan's Island with the main land; that the Sectional Dock Company built houses or buildings on the property in 1864; that in 1858 the Sectional Dock Company built houses or buildings partly in front of block 868, and partly further north; that the company used the property from 1858 to 1864, and then bought an old machine shop which had been erected in 1859 partly in front of block 868; that it was subject to overflow in an ordinary stage of water, and that the Sectional Dock Company built cribs for the purpose of keeping their lumber above the water; that at that time Kosciusko street was the nearest street to the water's edge (Kosciusko street is the next block west of Main street); that from 1858 to 1864 the office of the Sectional Dock Company was on the lower part of Duncan's Island; that from Lesperance street to Barton street in 1858, the river was from one hundred to two hundred feet wide between the Missouri shore and Duncan's Island; that a portion was not filled until the Iron Mountain Railroad commenced filling in 1882 to 1883 and was only completely filled a few years ago; that the city drove piling at Lesperance street where an eddy was forming, and which threatened to wash away what was originally part of survey 3078, and thereby prevented such washing, and the Iron Mountain Railroad hauled dirt and filled up the slough; that the old machine shop which the Sectional Dock Company purchased was located between Russell avenue and Trudeau street; that the Sectional Dock Company had been paying rent to the city for the property since 1858; that the city connected Duncan's Island with the main land by building dykes at Barton and at Lesperance streets, and then filled in between the dykes; that the Sectional Dock Company under its lease from the city piled lumber on block 868 in 1858 by building cribs to raise the lumber above the water, then filled up the slough between Duncan's Island and the main land.

The city showed by Henry Atkins, superintendent of the St. Louis Sectional Dock Company, that he had been connected with that company, beginning in 1856 and extending to the present time that he knew Duncan's Island in 1845 or 1846; that in 1845 in medium stage of water the boats ran between the main shore and Duncan's Island; that at the time the Iron Mountain trestle was built there were four, five, or six feet of water between the island and the main land; that the trestle extended from Lesperance street to Barton street; that the trestle was constructed about one hundred feet from the east bank of the...