Ragan v. McCoy

• Citation: 29 Mo. 356
• Parties: RAGAN et al., Defendants in Error, v. MCCOY, Plaintiff in Error.
• Decision Date: 31 January 1860
• Court: United States State Supreme Court of Missouri

29 Mo. 356

RAGAN et al., Defendants in Error,

v.MCCOY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1860.

1. The trial of the issues raised in an action for the recovery of money only, to which the practice act of 1849 is applicable, is for the jury, unless a jury trial is waived; the jury should be allowed to try all the issues, the court declaring the law; it would be improper and irregular to submit portions of the issues to the jury and reserve the remainder for the determination of the court.

2. Quere, where a court appoints three commissioners to sell and convey land, and they make a sale as directed, and after the sale and before making of the deed two of the commissioners die, whether the deed of the surviving commissioner acknowledged in open court would be valid and effectual?

3. Where streets of a town have once been dedicated to the public, the proprietors can not resume the property in such streets; there may be a dedication to the public of the streets of a town although the proprietors laying out such town may not comply with the provisions of the act concerning the plats of towns and villages. (R. C. 1845, p. 1055.)

4. The acknowledgment of the plat of a town by the proprietors under the act of February 12, 1845, (R. C. 1845, p. 1055,) is not rendered defective by reason of a failure of the person taking the acknowledgment to state in the certificate the fact that the persons making the same were personally known to him to be the persons executing the plat.

5. Where two persons are tenants in common of land, and one of them receives a benefit therefrom, but in nowise interferes with the joint use of the land by the other, and does not affect its value in any manner, it would seem that he does not render himself liable to account to such other joint tenant for a proportionate share of the benefit received.

Error to Clay Circuit Court.

This was a suit commenced in the year 1853 by Jacob Ragan, F. P. McGee, William Gillis, Robert Campbell, and William B. Evans, against John C. McCoy and the unknown heirs of Henry Jobe, deceased. William B. Evans dying, his heirs were made parties plaintiff. The suit was originally commenced before the Jackson circuit court. It was transferred by change of venue to Clay county. Plaintiffs in their petition state that in the year 1838 an association was formed by certain individuals, (including some of the plaintiffs and McCoy, the defendant,) fourteen in number, for the purpose of purchasing a certain tract of land containing about one hundred and fourteen acres; that when said land was offered for sale by the commissioners appointed by the Jackson circuit court they bought the same; that two of the three commissioners appointed to sell and convey said land, Peter Booth and Elliot Johnson, died before making a deed to the purchasers; that Robert Campbell, who was not one of the original purchasers, acquired the interests of three of those purchasers; that in August, 1843, James B. Davenport, the surviving commissioner, executed a deed conveying said land to the said purchasers, Robert Campbell being substituted in place of three of them, each of the eleven original purchasers receiving each one-fourteenth and Robert Campbell three-fourteenths. The petition then proceeds to set forth various conveyances by which, as is alleged, the title became distributed as follows: Ragan one-fourteenth, Evans one-fourteenth, McGee two-fourteenths, Gillis three-fourteenths, Campbell four-fourteenths, McCoy two-fourteenths, and the said Jobe or his unknown heirs one-fourteenth; that on the 10th of April, 1846, the proprietors of said tract having previously laid off thereon the town (now city) of Kansas and made a regular plat of the same, a portion of said company, to-wit, Ragan, McGee, McCoy, Gillis, Jobe, and Evans, duly acknowledged said plat, and the same on said April 30, 1846, was filed in the office of the recorder of the county of Jackson; that by said plat and the certificate of acknowledgment thereon endorsed said proprietors reserved to themselves individually and collectively the exclusive right and privilege of ferriage on said town tract, and the exclusive right of landing and fastening all ferry-boats and other watercrafts used for the purpose of ferriage to the bank in front of said town; that they are as a company and as tenants in common jointly entitled to the ferry privileges and landing on this, the south, side of the Missouri river; that McCoy has taken possession of and has used and enjoyed the same for a long series of years, to-wit, since the filing of said plat, and has taken and used more than his due proportion of the benefit thereof or of the profits arising from said ferry; that said McCoy, having taken more than his due proportion of the profits or benefits arising from said ferry, is and was bound to pay to each of the plaintiffs his interest in the profits arising from said ferry; that McCoy refuses so to settle and pay over, although demand has been made; that said ferry privilege is and has been worth since April 30th, 1846, at least nine hundred dollars; that he is liable to pay plaintiffs at least four hundred and fifty dollars as rent per year from said date.

The defendant McCoy by his answer denied that the interests of the several plaintiffs in the tract upon which the town of Kansas had been laid out were as charged; alleges that all of said land except a very small amount had been divided by agreement; denied that an effectual reservation had been made as charged; that the plaintiffs are jointly entitled to the ferry privilege; or that defendant has taken or received more than his due share or proportion of the benefit thereof or of the profits arising therefrom; or that he owes plaintiffs any thing whatever of profit arising from said ferry; or that the ferry privilege was worth the sum charged. By a supplemental answer defendant set up a dedication to the public of the land used for the purposes of a ferry long before the filing of the plat of 1846.

At the trial the court submitted to the jury the following issues: “First--The petition asserts and the answer denies that plaintiffs and defendant were tenants in common of the ferry privilege mentioned in the pleadings. Second-- The petition asserts and the answer denies that the yearly value of the said ferry privilege was worth nine hundred dollars. The jury will find whether the said parties were tenants in common, and how much the yearly rent of said ferry privilege was worth.”

In support of the issues the plaintiffs adduced in evidence various conveyances to themselves from various parties. They also introduced in evidence, against the objections of defendant, an original plat of the town of Kansas, on which the blocks and streets of the town were laid out. On the margin of the face of this plat was the following memorandum: “The proprietors reserve to themselves and to their heirs and assigns forever the exclusive right of ferriage on this town tract.” On the back of this plat there was this certificate of acknowledgment: “State of Missouri, county of Jackson, ss. Personally appeared William Gillis, Fry J. McGee, John C. McCoy, Jacob Ragan, Henry Jobe, William B. Evans, before me, Walter Bates, a justice of the peace within and for the township of Kaw, county and state aforesaid, and severally acknowledged the within town plat to be their act and deed for the purposes therein set forth; hereby conveying and granting for public use all the streets, alleys, squares and public grounds as shown on the within plat; reserving, however, to themselves, individually and collectively, and to their heirs and assigns forever, the exclusive right and privilege of ferriage on said town tract, and the exclusive right of landing and fastening on said town tract all ferry-boats and other water-craft used for the purpose of ferriage on the bank in front of said town. Taken and certified this 30th day of April, 1846. Walter Bates, J. P.” “Filed 30th day of April, 1846. S. D. Lucas, clerk.” Plaintiffs also introduced T. A. Smart as a witness, who testified that in 1839 McCoy was keeping a ferry from the site of the town of Kansas to the opposite shore; that he had kept it ever since; that about that time the town of Kansas was laid out, and there was a public sale of lots according to a survey made by one Donahoe; that nothing was said at the time of the sale of the lots of a reservation of ferry privileges; that Front street has ever since been used as a street; that McCoy was the owner of the land on the north side of the river; that some of the plaintiffs ran a ferry across the river a part of the year before 1846; that he had never heard of McCoy's objecting to their running or landing their boats on his lands or the town site; that up to 1846 the ferry privilege was worth nothing; that since that time the ferry, including both sides of the river, was worth an annual rent of seven hundred dollars. The court refused to permit the witness to answer the question asked by defendant whether McCoy's keeping up the ferry had not been of immense advantage in building up the town of Kansas and enriching the owners of the site.

The plaintiffs offered in evidence the deed executed by Davenport, the surviving commissioner, to the proprietors of the town site. This deed recited the sale of the land by the three commissioners, the transfer of the interests of three of the purchasers to Robert Campbell, and the death of two of the commissioners. The entry of acknowledgment of said deed by Davenport in open court recites the death of two commissioners, Johnson and Booth.

William S. Donahoe testified in behalf of defendant that in 1838 or 1839 he laid out and made a plat of the town of Kansas; that he was employed to do so by one of the proprietors of the town site; that there was a public sale of lots in 1838 or 1839; that a number of lots were sold at said sale; that they were sold as laid out on...