Rutherford v. Taylor

• Decision Date: 31 July 1866
• Parties: W. T. RUTHERFORD, et al., Appellants, v. W. H. TAYLOR et al., Respondents.
• Court: Missouri Supreme Court

38 Mo. 315

W. T. RUTHERFORD, et al., Appellants,

v.W. H. TAYLOR et al., Respondents.

Supreme Court of Missouri.

July Term, 1866.

Appeal from Randolph Circuit Court.

Prewitt, for appellants.

I. The County Court had authority to dedicate said lots to public use--R. C. 1825, p. 246, §§ 7 & 8; Id. p. 762, §§ 1 & 4.

II. The acts of the commissioner and County Court in making said plat, and declaring thereon and on the records of the court that said lots were held for public use, and the sale of the balance of said lots on the faith thereof was a dedication of said lots to public use, and the County Court could not afterwards apply them to any private purpose--City of Hannibal v. Draper, 15 Mo. 637; 10 Pet. (U. S.) 662; 4 Paige Ch. 510; Lackland v. N. Mo. R. R. Co., 31 Mo. 180 & 396; Carlin v. Paul, 11 Mo. 32; Ragan et al. v. McCoy, 29 Mo. 356. III. Public square.--Squares dedicated to public use in any manner, as for courthouses or other public buildings, stand on the same principle; and where the surrounding lots have been sold on the faith of such dedication, such squares cannot be applied to any private purpose--12 B. Mon. 538; 8 Id. 232; 18 Ohio, 18; 3 Vt. 279, 519, 530; 9 Ham. (Oh.) 80; 2 Harr. (Pa.) 186; 2 Watts, 23; 3 Barr. (Pa.) 203; 1 Whart. 469; 2 Smith Lea. Cas., Am. ed., note to Dovaston v. Payne, 189.

IV. The county has no right even to move the county seat without a vote of the people and paying for the lots--R. C. 1825, pp. 252-5, § 7; R. C. 1855, p. 518, § 31.

Hall & Reed, for respondents.

There is no right in this case to the public by prescription, for there was no adverse possession. The designation on the plat of “public lots” was only used as a designation of lots for public buildings. “Public lots,” as used in the plat, did not mean a conveyance to the public in the sense contended for, nor were they in any other sense public than as county or State property is called public property. The word public is used in two senses, one as the people generally, the other as those county and State organizations composed of the people. In the latter sense, the word public is here used; the use of them for courthouse and yard ever since the filing of the plat shows this. The County Court has the right to sell any real estate belonging to the county--R. C. 1855, p. 502, § 2. The proceedings were under the act of 1825, which authorized the establishment of a seat of Justice and the reservation of lots for public buildings, and the plat should be construed with reference to the object for which the whole proceeding was authorized--Acts of 1825, ch. 3, § 8, p. 247.

WAGNER, Judge, delivered the opinion of the court.

This was a petition for an injunction to restrain the respondents from erecting a building upon a portion of the public square in the town of Huntsville.

From the record it appears that in the year 1831 the County of Randolph received a donation of fifty acres of land for the purpose of laying out a county seat. The deeds conveying the land were made b the donors to the county without reservation or condition. In accord ance with the law then in force, the County Court of Randolph count appointed a commissioner and caused the town of Huntsville to be lai out, and a plat thereof to be made and filed in the recorder's office of th county, showing the streets and alleys, lots and size of the same, and across certain lots which have ever since been known and held as the public square the words “public lots” were written. And upon the records of the court the County Court made an order declaring that the said lots should be held for public use, and a certain other lot for a market house, and another lot for a jail, and directing the balance of the lots to be sold. After the making and filing of the town plat, and the making of the said order, the balance of the lots around the square in the town were sold. A courthouse was afterwards built upon the two centre lots of the block marked “public lots,” and the block or group of lots have ever since been held and known as public property, and called “courthouse square” and “public square,” and none of the lots composing the square have ever been used for any private purpose. In September, 1865, the County Court made an order appointing a commissioner and authorizing him to sell forty-two feet off of each end of the public square, and in pursuance of the order the commissioner sold to the respondents the lot in question. The respondents, it seems, were cognizant of all the facts and purchased with full notice, and evidence was introduced showing that the property had always been held and known and used as public property.

The appellants alleged in their petition that they purchased their property and erected improvements thereon fronting the courthouse square on the faith and with the understanding that the square was public property, and that the house or building which the respondents were about to put up would be a serious obstruction to the beneficial use and enjoyment of their property. This allegation was not denied in the answer. The court below being of the opinion that the property belonged absolutely to the county, and that the county had the right to dispose of the same in such manner as it might deem fit and proper, refused the injunction, and from the decree of the court the appellants took their appeal.

The town was laid off and the plat made and filed in the year 1831 whilst the statutory law of 1825 was in full force. By the eighth section of the statute of 1825, p. 247, it is declared that it shall be the duty of the tribunal transacting county business to designate and reserve from sale such lots and squares of ground as may be necessary for erecting public buildings thereon, and then provision is made for making orders for the sale of the residue of the lots so laid out.

The seventh section gives the...