Reid v. Bd. of Educ. of Edina

• Decision Date: 31 October 1880
• Citation: 73 Mo. 295
• Parties: REID, Appellant, v. BOARD OF EDUCATION OF EDINA.
• Court: Missouri Supreme Court

73 Mo. 295

REID, Appellant,

v.BOARD OF EDUCATION OF EDINA.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Ewing & Hough and Hays & Dysart for appellant.

1. The filing of the town plat in Lewis county was inoperative, either as a statutory dedication or as a dedication by deed or grant, to vest the fee in Lewis county for the reason: (1) That the land was situated without the territorial limits of Lewis county. 1 Terr. Laws, 650, 651. (2) The dedication was for the purpose of containing the court house of a county to be, in the future, formed out of territory lying without the limits of Lewis county. Such a dedication could not take effect, because the future existence of the proposed county was purely speculative, and because the trust was for a purpose wholly foreign to the objects of county organization, and impossible of execution by the county. Lewis county possessed no power or instrumentality to execute such a trust outside her own borders, and had not the remotest interest in the purposes of the trust. Such a trust created by dedication, becoming impossible, is void, and the property held in trust reverts to the donor. Board of Education v. Inhabitants, etc., 18 Ohio St. 221; Hunter v. Middleton, 13 Ill. 50; State v. Trask, 6 Vt. 355; Commonwealth v. Fisk, 8 Met. 238; Dillon Munic. Corp., § 515. Much more is such a trust created by dedication void and inoperative when impossible ab initio. Lewis county could not acquire title to real estate for such a purpose. “Public use” in the statute must be interpreted as limited to such uses as are embraced within the purposes for which counties are instituted. The holding by one county of real estate situate without its own boundaries in trust for the site of a court house, or for any other public use, of another county, is certainly alien to the purpose of county government. A corporation with full corporate powers cannot hold land for a purpose foreign to its institution. Chambers v. St. Louis, 29 Mo. 578. But counties have no powers except such as are expressly conferred on them by statute. They have no power to purchase or hold land unless it is given them by statute. Jackson v. Hartwell, 8 Johns. 424; Jackson v. Cory, 8 Johns. 385; Riley v. Rochester, 9 N. Y. 64; Nelson v. Madison, 3 Bissell 244; Commissioners v. Mighels, 7 Ohio St. 109; 3 Pa. St. 133; 22 Wend. 451; Kent, 328; Dillon Munic. Corp., §§ 435 and 10 a; Ray Co. v. Bentley, 49 Mo. 242; Holt Co. v. Harmon, 59 Mo. 165.

2. The dedication is not a general dedication to public use without restriction or limitation, but a dedication to a particular specified use. The block in question is, by the plat filed, “declared to be public property for the purpose of containing the court house should the town be selected for a county seat.” This limitation is an inseparable condition and qualification of the dedication. By the terms of the statute under which the plat was filed, the filing of a town plat had the effect to vest in the county the fee for the particular use specified in the dedication, and none other. The right acquired by the county under this statute, from a dedication limited to a particular use, was a mere easement; not an estate in the land but an easement upon it. The fee vested in the county by virtue of the statute was not in the land itself, but in the use of it for the particular purpose specified in the dedication. The title in fee to the land still remained in the donor, subject only to the easement of the use by the public for the purpose specified. U. S. v. Ill. Cen. R. R. Co., 2 Biss. 174; Washburn Easements, (2 Ed.) 200; Dillon Munic. Corp., § 513. Hence, it is uniformly held, that, in dedication to a particular use, whether by statute or grant or at common law, the public acquires no interest without an acceptance of the dedication and use of the property for the purpose designated. Becker v. St. Charles, 37 Mo. 13; Lee v. Lake, 14 Mich. 12; Commonwealth v. Fisk, 8 Met. 238; Parsonv. Atlanta University, 44 Ga. 529; Mo. Inst., etc., v. How, 27 Mo. 211; Brinck v. Collier, 56 Mo. 160; City of Hannibal v. Draper, 36 Mo. 337; David v. Municipality, etc., 14 La. Ann. 872; Oswald v. Grenet, 22 Texas 94; Baker v. Johnston, 21 Mich. 319; Harris v. Commonwealth, 20 Gratt. (Va.) 833; Lee v. Sandy Hill, 40 N. Y. 442; Green v. Chelsea, 24 Pick. 71; Harding v. Jasper, 14 Cal. 647; Detroit v. Detroit R. R. Co., 12 Mich. 333; Washburn on Easements, (3 Ed.) 195; Niagara F. S. B. Co. v. Bachman, 4 Lans. (N. Y.) 523; Trustees, etc., v. Mayor, etc., 33 N. J. L. 13.

3. There was no acceptance of the dedication, or use of the property for the purpose to which the proposed dedication was limited by the plat. Neither Lewis nor Knox county ever exercised any care or acts of ownership over the block in question for any purpose, from the filing of the plat in 1839 until 1873, over thirty years. The only act then done was to release the property to the school board and subject it to a use inconsistent with the alleged dedication. Knox county in 1845 accepted another donation of fifty acres for a seat of justice; laid off the county seat thereon, reserving a public square for the court house, built the court house and jail on the square so reserved, inclosed and improved it, and has ever since occupied it for that purpose. In the meantime the block in question was left uninclosed and wholly uncared for and was used in all respects as other uninclosed grounds. The action of both counties amounts to a clear and distinct renunciation of the proposed dedication. Dyer v. Sandford, 9 Met. 395, 401; Lee v. Lake and Commonwealth v. Fisk, supra; Liggins v. Inge, 7 Bing. 682.

Wilson, Cover & McQuoid for respondent.

NORTON, J.

This is an action of ejectment brought by James A. Reid to recover possession of block No. 9, in that part of Edina, Knox county, laid out by Wm. J. Smallwood, and at his death revived in the name of the present plaintiff. The defense set up is a dedication of the block in question to public use by said Smallwood, by filing in Lewis county, on the 18th day of November, 1839, a town plat, on which the block in question was designated and set apart for public use, and also by a deed endorsed on said plat, purporting to quit-claim the block in question to Lewis county for public use. The answer also alleges the sale by Smallwood of lots fronting on the block in question for “extra valuable considerations” by reason of the alleged dedication to public use; that said James A. Reid during his lifetime purchased of said Smallwood, and other parties, lots fronting on said block, and always recognized the same as a block dedicated to public use, and sold said lots to various parties with the understanding that said block was a public square dedicated to public use. It is further alleged in the answer that after the filing of the plat in Lewis county, Lewis county was divided and Knox county organized out of the territory of Lewis county, whereby the title vested in Lewis county by the filing of the plat and deed passed to Knox county; that Knox county was in possession of the block in question from its organization until 1873, when respondents went into possession of said block by consent of Knox county and the town of Edina, and erected thereon improvements of the value of $10,000, and ever since then have occupied it for school purposes. The reply admits the filing of the plat in Lewis county; but alleges that it had designated thereon and purported to convey to Lewis county the block in question for public use, “for the purpose of containing the court house should the town be selected for a county seat, and not otherwise or for any other purpose;” denies title in Smallwood at the time of filing the plat, and alleges that he did not acquire the title until the 10th day of November, 1841; and denies that Knox county was organized out of the territory of Lewis county. Upon the trial of the cause in the Macon county circuit court, where it had been taken by change of venue, judgment was rendered for defendant, from which plaintiff has appealed.

Both parties claim through W. J. Smallwood. Plaintiff claims title by virtue of a sheriff's deed executed in 1866 to James A. Reid, at whose suit by attachment against said Smallwood the block of ground in question had been levied upon in 1860 as the property of said Smallwood and was subsequently sold under a special execution which issued on a judgment rendered in said proceeding. Defendant claims that the title of said Smallwood to said block, long anterior to the levy of said attachment and the sale thereunder, had passed out of him by reason of his having dedicated the same to public use. In support of this claim defendant offered evidence showing that said Smallwood, after having entered at the United States land office the west half of southwest quarter, section 18, township 62, range 11, on the 18th day of November, 1839, laid out on the land so entered, and before the issuance of the patent to him by the government, (which did not occur till 1841,) and platted the town of Edina. On the face of said plat, which was put in evidence, the lots, by size and number, blocks, by size and number, streets, by name and width, and alleys were indicated, including block nine, the subject of this controversy.

The words “public square” are written across block nine as laid down on the plat, and under the head of “References” number eight on the face of the plat is the following memorandum: “Block numbered nine declared public property for the purpose of containing the court house, should the town be selected for county seat.” On the reverse side of the plat is the following deed or writing: This indenture made this 18th day of November, A. D. 1839, between William J. Smallwood, of Lewis county, State of Missouri, of the first part, and the county of Lewis of the other part, witnesseth that; Whereas,...