Price v. Inhabitants of Breckenridge

• Decision Date: 30 April 1883
• Citation: 77 Mo. 447
• Parties: PRICE v. THE INHABITANTS OF THE TOWN OF BRECKENRIDGE, Appellant.
• Court: Missouri Supreme Court

77 Mo. 447

PRICE

v.THE INHABITANTS OF THE TOWN OF BRECKENRIDGE, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Crosby Johnson for appellant.

O. J. Chapman for respondents.

HENRY, J.

This is an action of ejectment to recover possession of block No. 15 in the town of Breckenridge. The answer is a general denial, and a special plea of the statute of limitation, and also that the former owners of the town site dedicated the block in question as a public square, by so marking it on the plat filed, and further, that said original proprietors, while yet owners, represented that they had dedicated it for that purpose, and thereby induced others to purchase lots fronting thereon at higher prices than would otherwise have been paid for them. The reply was a general denial, and on a trial of the cause plaintiffs had judgment, from which this appeal is prosecuted.

Plaintiffs' evidence tended to prove that the land embraced in the town site was patented to Henry Gist, who conveyed it to plaintiff Price, as trustee and manager of the town company, consisting of Gist, Wadlow, Terrill and Price; that by conveyances from Wadlow and the heirs of Gist and Terrill, except two minors, plaintiff acquired the title to all of the land, except the interests of said minor heirs of Terrill.

It was admitted that the original plat of said town was burned with the court-house in 1860, and that there was no certified copy in existence.

Price testified that he never dedicated his interest in the block; that in posters advertising public sale of lots in October, 1856, and July, 1857, it was stated that ground had been reserved for public use in case a new county should be formed with Breckenridge as a county seat, and, except in that manner, no dedication was ever made; that on the plat it was simply marked 15, but the people were in the habit of calling it “the public square.” One of the posters accompanying his deposition contained clauses to the following effect: “Ample grounds have been reserved for public purposes,” and in one, “Ample grounds have been reserved for county buildings, in case Breckenridge becomes a county seat.”

Dr. Bottom testified that his father bought a large number of lots at one of the public sales made by the town company, and that witness moved to Breckenridge soon after as agent of the property, and in 1862 asked Price for a plat of the town, and that he handed him a plat which had the words “public square” written across block 15; that this was in Price's handwriting. He also introduced another plat on brown paper sent to him by Price in 1867, with ““public square” written in Price's handwriting across block 15. That when he went to Breckenridge this block was lying out to commons, and so continued until 1867, when it was fenced and planted in trees by public subscription, and has ever since remained under the control of the town, and that he never heard of any attempt by the original owners or their grantees to exercise any ownership over the block. The town company never included this block in their list of property for assessment for taxes.

Hatfield testified that he was present in 1856 at a public sale of lots by said company, and that the auctioneer publicly announced that block 15 would not be sold, as it was reserved for a public square, and that he bought a lot fronting on said block, supposing it would be a public square. Rob't Trosper testified that he was present at the sale, and heard the auctioneer announce that block 15 was for a public square.

A witness...