Rose v. City of St. Charles

• Decision Date: 31 March 1872
• Citation: 49 Mo. 509
• Parties: REUBEN G. ROSE et al., Appellants, v. CITY OF ST. CHARLES, Respondent.
• Court: Missouri Supreme Court

49 Mo. 509

REUBEN G. ROSE et al., Appellants,

v.CITY OF ST. CHARLES, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Charles Circuit Court.

Theodore Bruere, and Orrick & Emmons, for appellants, cited 11 Mo. 247; 30 Mo. 161; 21 Iowa, 565; 2 Oregon, 123; 31 Conn. 581; 7 Ga. 139; 2 Scam. 56; 10 Mo. 763; 37 Mo. 132, 600; 33 Conn. 180; Greenl. Ev., § 662; Waterm. N. T. 241-2.

McDearmon & Alexander, for respondent.

BLISS, Judge, delivered the opinion of the court.

The plaintiffs sued the city for grading and filling certain streets, by means of which the water was set back upon their lots, to their great damage, etc. The issues were submitted to a jury, who found for defendant, and the plaintiffs charge certain errors committed upon the trial:

1. After the jury was called, the plaintiffs moved for a special venire for jurors who owned property within the town of St. Charles, inasmuch as some of those called were residents and tax payers of the town, and hence interested. The motion was overruled, but had it been made in season it should have been granted (Fine v. St. Louis Public Schools, 30 Mo. 166.) There was no challenge to any juror upon the ground of interest, and the motion was made too late. If parties desire a special venire, the motion should be made so early that the jury can be summoned and be ready to be impaneled when the case is called for trial, otherwise it may become a cover for delay.

2. To show that the street filled by the city was so dedicated as to become public property, an agreement to dedicate it by a former owner of the property was offered in evidence against the objection of the plaintiffs. It is not necessary, in order to constitute a street or alley in a municipal corporation, that the statutory course should be pursued. Any act by the owner of property setting apart to the public a portion of his property, clearly showing that such was his intention, vests the use of such property in the public for the purposes indicated; and if actually thrown open, the public may take possession. The usual course is to make a plan of a town or of an addition, setting apart streets, alleys, public squares, etc., and file a plat thereof with the recorder; but in the present case a contract was shown between the owner and purchasers of contiguous property, to dedicate certain streets of which the city has taken possession. The court correctly held this to be sufficient evidence of dedication. No ordinance is necessary. (Taylor v. City, etc., 14 Mo. 17.) Becker v. City, etc., 37 Mo. 13, is cited in support of the claim that a formal acceptance of the dedication is necessary, but in that case the facts were unlike these under consideration. In Becker v. City, the owners of the property resisted the opening of the street, while...