Roth et al. v. Hoffman et al., 23274.

• Decision Date: 04 January 1938
• Docket Number: No. 23274.,23274.
• Citation: 111 S.W.2d 988
• Parties: OTTO M. ROTH ET AL., PLAINTIFFS, RESPONDENTS, v. EDWARD D. HOFFMAN ET AL., DEFENDANTS; CAPE COUNTY SAVINGS BANK, DEFENDANT, APPELLANT.
• Court: Missouri Court of Appeals

111 S.W.2d 988

OTTO M. ROTH ET AL., PLAINTIFFS, RESPONDENTS, v. EDWARD D. HOFFMAN ET AL., DEFENDANTS; CAPE COUNTY SAVINGS BANK, DEFENDANT, APPELLANT.

No. 23274.

St. Louis Court of Appeals. Missouri.

Opinion filed January 4, 1938.

Motion for Rehearing Overruled January 19, 1938.

Petition for Writ of Certiorari Denied February 25, 1938.

Appeal from the Circuit Court of St. Louis County. — Hon. Fred E. Mueller, Judge.

AFFIRMED.

L.L. Bowman, W.D. Brockman and J.I. Sample for appellant.

(1) Sec. 7057, R.S. Mo. 1929; Delmar Investment Co. v. Lewis, 271 Mo. 317. (2) Robertson v. Vandalia Trust Co., 66 S.W. (2d) 193; Mark v. Cooperage Co., 204 Mo. 242; Dimick v. Snyder, 34 S.W. (2d) 1004; Haake v. Union Bank & Trust Co., 54 S.W. (2d) 459; Munford v. Shelton, 320 Mo. 1077. (3) The decree which is awarded plaintiffs must be authorized both by the facts stated in the petition and by the proof, otherwise it is void. Schneider v. Patton et al., 175 Mo. 684; Reed v. Bott, 100 Mo. 62. (4) A former ejectment suit and the judgment thereon is not res adjudicata and cannot, as a matter of law, be pleaded in bar of a subsequent claim where the parties are not the same, or, even between the same parties. 23 Cyc., p. 1326, and many Missouri cases there cited; Speed v. Terminal Ry. Co., 163 Mo. 111; Kimmel v. Benna, 70 Mo. 52; Sutton v. Damron, 100 Mo. 141, l.c. 149; Stone v. Perkins, 217 Mo. 586, l.c. 599; Crowl v. Crowl, 195 Mo. 338, l.c. 345. (5) Where no judgment is asked against a defendant by reason of a plea of res adjudicata, the plea is meaningless and should be stricken out. State ex rel. v. Bradly, 91 S.W. 485. (6) City of St. Louis v. Emma Clegg, 289 Mo. 321; Buschmann v. St. Louis, 121 Mo. 533; State v. Tranane, 131 Mo. App. 323. (7) Judgment or suit for damages in a proceeding for trespass for taking private property as a street, without lawful condemnation, operates a dedication of the land. Graf v. City of St. Louis, 8 Mo. App. 562. (8) A street may be established by prescription where there has been user for ten years or more by the public of the part actually used or improved by the public. Vassen v. Dantel, 116 Mo. 379; Buschmann v. St. Louis, 121 Mo. 523; Road Dist. v. Bueker, 256 S.W. 98; Hall v. Flagg Special Road Dist., 296 S.W. 164; Eckerle v. Perry, 297 S.W. 424; Gilleland v. Rutt, 63 S.W. (2d) 199; Mulik v. Jorgaman, 37 S.W. (2d) 963. (9) Davis v. Lea, 293 Mo. 660-672; St. Louis v. Clegg, 289 Mo. 321; Moses v. Dock Co., 84 Mo. 242-247; Field v. Mark, 125 Mo. 502-515; Whyte v. St. Louis, 153 Mo. 80-90; Heitz v. St. Louis, 110 Mo. 618; Buschmann v. St. Louis, 121 Mo. 523; Longworth v. Seidivic, 165 Mo. 221. For the convenience of the court we give excerpts from some of the cases cited: Syllabus No. 2 in the Clegg case, supra, 289 Mo. 321, says: "While the rule is that an estoppel by deed, including an implied covenant, can operate only in favor of the grantee or his privies in estate, and estoppel in pais can operate only when representatives have been made to a legal person, who has relied upon them to the extent that it would be inequitable to allow them to be withdrawn, a call for a street in a deed from one individual to another is more than a mere description, for it is an implied covenant that there is such a street, and where such individual has accepted the deed and acted on it in reliance upon such covenant the general public can avail itself of an estoppel in his favor." In the case of Longworth v. Sedivic, 165 Mo. 225, the court said on page 230: "A corner lot, which it would cease to be if the street was closed up" and plaintiffs "have a right to maintain an action to prevent its being closed up by the defendants. Milling Co. v. Riley, 133 Mo. 586." (10) McGrath v. Nevada, 188 Mo. 102, l.c. 107; Board ex rel. v. McPherson, 172 Mo. App. 369-374; State v. Auffort, 192 Mo. App. 133-137; Naylor v. Harrisonville, 207 Mo. 351; Boonville Special Road Dist. v. Fuser, 184 Mo. App. 634.

A.E.L. Gardner for respondents.

(1) It is well settled that where public improvements are constructed in invitum on private grounds tax bills issued against the owner of the abutting property, in payment for the improvements so constructed, are void. City of Springfield ex rel. v. Eisenmayer, 297 S.W. 460, l.c. 462; City of Kirkwood ex rel. Baptiste v. Handlan, 285 Mo. 92, l.c. 98, 99, 225 S.W. 692; City of Springfield ex rel. v. Baxter, 180 Mo. App. 40, 165 S.W. 366; Naylor v. City of Harrisonville, 207 Mo. 341, 105 S.W. 1074. (2) If the only right the public has in a road is as a result of adverse user for the statutory period, then such right is limited to the traveled or used portion of the road. Hall v. Road Dist., 296 S.W. 164, l.c. 165; State v. Thompson, 91 Mo. App. 329. (3) The evidence in this case does not support appellant's plea of estoppel. It is held that the following elements must actually or presumably be present to constitute estoppel by conduct: (a) There must have been a false representation or a concealment of material facts. (b) The representations must have been made with knowledge of the facts. (c) The party to whom it was made must have been ignorant of the truth of the matter. (d) It must have been made with the intention that the other party should act upon it. (e) The other party must have been induced to act upon it. Blodgett v. Perry, 97 Mo. App. 263, l.c. 272, 273, 274; Bigelow on Est. (3 Ed.), 484. (4) Nor will mere silence or some act done, where the means of knowledge are equally open to both parties, estop the party doing the act or remaining silent. Blodgett v. Perry, supra; Bales v. Perry, 51 Mo. 449; Acton v. Dooley, 74 Mo. 74; Mueller v. Kessmann, 84 Mo. 318; Laughlin v. Wells, 283 S.W. 990; Wood v. Oil Co., 220 Mo. App. 1004, 274 S.W. 894; 21 C.J. 1151; Spahr v. Cape, 143 Mo. App. 114; Harrison v. McReynols, 183 Mo. 533, l.c. 550. (5) To support a plea of estoppel as to titles to real estate, it has been held that it must appear that there was fraud or gross neglect; that the party making the admission, by his declaration or conduct, was apprised of the true state of his own title, and that others were acting in ignorance of it; and that he intended to deceive or was culpably negligent in the non-assertion of his rights; and that the other party had no knowledge or means of acquiring knowledge of the true state of the title, and that he relied upon such admission to his injury. DeBerry v. Wheeler, 128 Mo. 84, l.c. 90; Wilkerson v. Libermann, 327 Mo. App. 420; 2 Herman on Estoppel and Res Judicata, sec. 287. (6) To make out a case of implied waiver of a legal right, there must be a clear, unequivocal and decisive act of the party showing such purpose, or acts amounting to an estoppel on his part. Schwab v. American Yeoman, 305 Mo. 148, l.c. 155. (7) The plea of estoppel sought to be invoked by appellant is not available where the work is being done under an ordinance which was passed without due observance of all the precedent conditions required by statute. Hoover v. Newton, 193 S.W. 897; Cox v. Mignery, 126 Mo. App. 676, 105 S.W. 677; Perkinson v. Hoolan, 182 Mo. 189; Verdin v. City of St. Louis, 131 Mo. 98; Keane v. Clausman, 21 Mo. App. 495; 21 C.J. 1129, sec. 131; Dameron v. Jamerson, 143 Mo. 483, l.c. 491.

HOSTETTER, P.J.

This is a suit in equity begun in the circuit court of St. Louis County on July 22, 1931, the purpose of which is to have a special tax bill in the sum of $4961.85 with interest declared null and void.

The substance of the amended petition, on which the case was tried, is as follows:

That plaintiffs are husband and wife and that by a deed dated June 22, 1907, and duly recorded, they acquired the title to a tract of approximately nine acres situated in the city of Kirkwood, St. Louis County, Missouri, and have owned it as tenants by the entirety ever since; that the following is a more particular description of the tract so owned by them:

A lot in the southeast quarter (S.E. ¼) of section 35, Township 45 north, Range 5 east, having an aggregate frontage on the south side of 780.70 feet by a depth northwardly of 500.22 feet, bounded on the north by Butterfield Avenue, on the east by Geyer Road, on the south by the north line of what was known as Essex Avenue, and on the west by Carlon Avenue, in the City of Kirkwood in St. Louis County and State of Missouri.

That the city of Kirkwood in which said tract is located is a city of the fourth class and that on or about the 22nd day of April, 1929, the said city of Kirkwood enacted an ordinance, No. 2712, by the terms of which it undertook to provide for the improvement of Essex Avenue by constructing a concrete slab twenty feet wide westwardly from the west line of Geyer Road, a public street in Kirkwood, to the western limits of said City; that Essex Avenue lay adjacent to and abutting the south line of plaintiff's land, that is to say, south of the south line of section 35, Township 45, north, Range 5 east; that during the months of June, July, and August, 1929, the Carlon Construction Company, under the contract let by said city of Kirkwood, entered upon the work of improving and constructing said Essex Avenue under and by virtue of the terms of said ordinance; that the said company constructed a concrete roadway or slab upon the south twenty feet of the tract owned and in the possession of plaintiffs; that said twenty-foot strip of plaintiff's land extended from the west line of said Geyer Road westwardly and parallel with and immediately north and adjacent to the south line of said section 35, Township 45, Range 5 east, for a distance of 780.14 feet on the property belonging to and in the possession of the plaintiffs; that a special tax bill was issued by the city of Kirkwood against the entire tract owned by plaintiffs in payment for the work and recorded as a lien on all of plaintiffs' property and the same was, by the Carlon Construction Company, assigned to the defendants Hoffman Mortgage...