Restetsky v. Delmar Avenue & Clayton Railroad Company
| Decision Date | 26 April 1904 |
| Citation | 85 S.W. 665,106 Mo.App. 382 |
| Parties | RESTETSKY et al., Respondents, v. DELMAR AVENUE & CLAYTON RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. A. Blevins Judge.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann, George W. Easley and Crawley & Jamison for appellant.
(1) The only instruction given by the court at the instance of plaintiff is palpably misleading and erroneous. In effect the jury were advised by said instruction that they were not bound by the testimony of expert witnesses. Nor were they bound by the testimony of non-experts. That the jury were at liberty to ignore the testimony of all the witnesses and estimate values and damages in accordance with their own knowledge and judgment. Hoyberg v. Hensecke, 153 Mo 63. (2) There is no evidence that Rogers and his wife who sold to plaintiffs had any title to the tract of land conveyed, and the evidence fails to show title in plaintiffs. Turner v. Williams, 76 Mo. 617. (3) The second amended petition, upon which the case was tried, alleged that the so-called Vine and South streets had been granted and dedicated for the private use of plaintiffs. There is no evidence in the record of the dedication. "In the first place, there is, properly speaking, no such thing as a dedication to a private use." Coberly v. Butler, 63 Mo.App. 559. 9 Am. and Eng. Ency. of Law (2 Ed.), p. 23; Vossen v. Dautel, 116 Mo. 386; Coberly v. Butler, 63 Mo.App. 559.
Joseph A. Wright for respondents.
(1) The plat (and its accompanying grant), introduced in evidence, and plaintiffs having proven their title, are entitled to recover for the damages sustained by the cutting down of Vine street, for many years prior thereto used by them as a private way. First Presbyterian Church v. Kellar, 39 Mo.App. 441; Cunningham v. Fitzgerald, 138 N.Y. 165; Coudert v. Sayre, 46 N.J.Eq. 386; Fitzgerald v. Barbour, 55 F. 440; Jones on Easements 201. (2) Having purchased their lot as a part and parcel of lands thus platted, a right-of-way passed as an easement appurtenant thereto. This right is acquired by an implied covenant as appurtenant to the premises granted. The courts have gone so far as to construe this right in favor of the grantee as against a grantor who has retained title to adjoining lands. Such cases are much stronger from a defendant's standpoint than the case at bar, where the defendant appears in the role of a trespasser. Vossen v. Dautel, 116 Mo. 379; Lennig v. Ocean City Association, 41 N.J.Eq. 606; Love v. Stiles, 25 N.J.Eq. 381; Chapin v. Brown, 15 R. I. 579; Palmer v. Palmer, 150 N.Y. 139; Bond v. Willis, 84 Va. 796; Pingree v. McDuffy, 53 N.H. 306; Kingsley v. Goldsborough Co., 86 Me. 279; Pinnington v. Galland, 10 E. R. C. 35; Howton v. Frearson, 8 T. R. 50. (3) Disregarding all questions of an easement in Vine street, the Constitution of 1875 gives to plaintiffs the right of compensation for the damages they have sustained. The lot has been damaged within the meaning of the Constitution. Const., art. 2, sec. 21; Werth v. Springfield, 78 Mo. 107; Householder v. Kansas City, 83 Mo. 488; Davis v. Railway, 119 Mo. 180; Railroad v. Gordon, 157 Mo. 71. (4) In the Constitution of 1875, however, easements essential to the enjoyment of property can no more be taken away or destroyed without compensation than the corpus of the property. Van De Vere v. Kansas City, 107 Mo. 83; Gaus Mfg. Co. v. Railroad, 113 Mo. 308; Thomas v. Hunt, 134 Mo. 392. (5) Instruction No. 1, given by the court, is identical with the instruction approved in Kansas City v. Butterfield, 89 Mo. 646, and followed in an unbroken line by subsequent decisions of the appellate courts of the State. Kansas City v. Butterfield, 89 Mo. 646; St. Louis v. Ranken, 95 Mo. 189; State v. Whitten, 100 Mo. 525; Hull v. St. Louis, 138 Mo. 618; Fullerton v. Fordyce, 144 Mo. 519; Hoyberg v. Henske, 153 Mo. 63; Brownrigg v. Massengale, 97 Mo.App. 190.
Plaintiffs are averred to be the owners and in possession of lot 1, block 3, of Rogers' Subdivision of Benton Place, a platted piece of ground just outside the limits of the city of St. Louis, abutting on two streets in said subdivision, Vine and South. The tract contains fifteen acres and was subdivided into lots and suitable roads and ways, designated as streets, April 17, 1884, by its then owners, George and Jane Rogers. On the plat of the subdivision, duly acknowledged and recorded, was the following certificate:
Plaintiffs' lot was conveyed by the Rogers to Katherine Riley's trustee July 9, 1888, and by Katherine Riley through her trustee Richard L. Knott, to the plaintiffs, September 26, 1890. It is agreed those deeds conveyed to plaintiffs whatever right and title George and Jane Rogers had to the lot, which is described in each deed by its number and also by metes and bounds. The complaint against the defendant is that in July, 1899, while plaintiffs owned and were in possession of the lot, the defendant illegally entered on the streets named in front and at the side of the plaintiffs' lot, dug and removed the dirt from the streets to a depth of eight or ten feet, destroying access to said lot and changing the course of the drainage so that large quantities of water flowed down the streets and washed gullies in them. Damages were prayed for those acts.
The answer was a general denial.
Evidence to support the charge that the defendant dug and excavated along the streets mentioned, to the damage of plaintiff's property, was introduced, witnesses testifying to the extent of the damage, but varying in their estimates from more than $ 2,000 to an inconsiderable amount.
At the instances of the plaintiffs the court granted the following instruction, to which an exception was saved:
"You are instructed that in regard to the evidence before you, of experts and others, concerning the value of plaintiffs' lot before and after the grading and cutting down of Vine street and South street, complained of by plaintiffs, and the actual damage done, if any, you are not bound by the testimony of such witnesses, but may apply your own judgment and knowledge as to such values and damage, in arriving at your verdict in connection with the testimony offered in the case at trial."
The court refused instructions requested by the defendant, whose general purport was to deny any right of action to the plaintiffs on the ground that the streets had neither been dedicated to their use, nor granted to them by the original owners; that no title to the lot or streets was shown in the plaintiffs and that no evidence was adduced to prove the defendant company committed the alleged torts.
The plaintiffs had a verdict for $ 1,500; but afterwards voluntarily remitted one-half of that amount. This appeal was taken by the defendant.
1. Evidence was put in which sufficed for an inference by the jury that the defendant company excavated the streets. A large gang of laborers did the work in preparation of a grade for a railroad track the defendant company intended to lay, and the president of the company was seen among the laborers. The company attempted to justify its action under a grant of authority from the county court of St. Louis county, authorizing it to construct a railroad over any public road within six hundred feet of the city limits, the street in question being within that distance of the corporate boundary of St. Louis.
2. As the original grantors under whom plaintiffs claim had subdivided the tract of land containing the streets and lot, sixteen years before the excavation occurred, and as plaintiffs, and those under whom they claim, had been in adverse possession of the lot during that period under color of title and claiming to own it, we hold plaintiffs showed sufficient title to maintain this action against the defendant as a wrongdoer. Watts v. Loomis, 81 Mo. 236.
3. Our opinion is that by virtue of the deeds put in evidence the plaintiffs owned the fee of the ground to the center of the streets that bordered their lot; for the plat shows no intention on the part of the original grantors to reserve the fee. Only the use of the streets by the proprietors was reserved. When lots abutting on a platted street are sold the purchaser takes title to the center of the street unless a different intention appears. Elliott, Roads and Streets (2 Ed.), sec. 722; Mott v. Sargent, 119 Mass. 231; Peck v. Denniston, 121 Mass. 17; Gould v. Railroad, 142 Mass. 85; Weisbrad v. Railroad, 18 Wis. 35, 86 Am. Dec. 743; Hurley v. Miss., etc., Co., 34 Minn. 143, 24 N.W. 917. It is beyond doubt that plaintiffs had such an interest in the streets, either as owners of the fee, or of an easement, as gave them an action for the injury done to their lot by the excavation. The original proprietors declared on the plat filed and recorded by them that the streets were reserved for the private use of the present and future occupants of the lots in the subdivision. Plaintiffs became the owners of one of the lots and that reservation vested...
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