Schell v. City of Jefferson

• Decision Date: 27 May 1948
• Docket Number: No. 40223.,40223.
• Citation: 212 S.W.2d 430
• Parties: RICHARD A. SCHELL and PHYLLIS F. SCHELL v. CITY OF JEFFERSON, MISSOURI, a Municipal Corporation, Appellant.
• Court: Missouri Supreme Court

212 S.W.2d 430

RICHARD A. SCHELL and PHYLLIS F. SCHELL v. CITY OF JEFFERSON, MISSOURI, a Municipal Corporation, Appellant.

No. 40223.

Supreme Court of Missouri.

Court en Banc, May 27, 1948.

Rehearing Denied, June 14, 1948.

Appeal from Cole Circuit Court. — Hon. Sam C. Blair, Judge.

REVERSED AND REMANDED (with directions).

Paul Ewing Allen and D.F. Calfee for appellant.

(1) Defendant's Exhibit D, the old map of the City of Jefferson, dated 1849, is an ancient document and as such was entitled to be admitted in evidence. It was established beyond any reasonable doubt that it was over forty years old, and every indication is that it was made in or about the year of the date it bears, 1849. It was found in proper custody, the Office of the Recorder of Deeds of Cole County, Missouri; it does not have a suspicious appearance, but on the contrary bears every evidence of being genuine and authentic, and other attendant circumstances fully corroborate its genuineness. The court erred in refusing to admit it in evidence. Davis v. Wood, 161 Mo. 17, 61 S.W. 695; Anderson v. Cole, 234 Mo. 1, 136 S.W. 395; Brown v. Weare, 152 S.W. (2d) 649; Sharp v. Richardson, 182 S.W. (2d) 151; Spencer v. Levy, 173 S.W. 550. (2) And said map (Defendant's Exhibit D) was admissible in evidence as secondary evidence, the original map having been lost or destroyed. In this respect public records do not differ from private documents. 22 C.J., sec. 1317, pp. 1029, 1030; 32 C.J.S., sec. 827, pp. 755, 756; 7 Wigmore on Evidence, pp. 594, 595, and 596, Sec. 2143, Title, Authentication of Documents by Age. (3) The survey and platting of the City of Jefferson, and the sale of inlots and outlots by reference to said plat, by the State of Missouri, acting by and through the General Assembly and the duly authorized agents of the state, constitute a dedication to the public use of the streets, alleys, parks, commons, and all pieces or tracts of ground left open for common or public use, including creeks, and the title to said streets, alleys, parks, commons, and other tracts was thereby vested in the City of Jefferson; and the court erred in finding and holding that the defendant city had no interest of any kind in the bed and banks of Weir's (Wares) Creek. 26 C.J.S., pp. 76, 78, 82, Secs. 22, 23; Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 41 S.W. (2d) 945; Town of Otterville v. Bente, 240 Mo. 291, 144 S.W. 822; Sharp v. Richardson, 182 S.W. (2d) 151. (4) With reference to establishment of the Permanent Seat of Government of Missouri, the grant of land by act of Congress, acts of the General Assembly providing for the laying out of a town thereon, the sale of lots in said town, and other acts incidental thereto, see case of Lessieure v. Price, 12 Mo. 14, where the history of the location of the Permanent Seat of Government at Jefferson City is set out, in part at least, by recital of matters offered in evidence threin. See also 1 Missouri Territorial Laws, p. 859, Act approved, January 11, 1822; Laws 1821-2, p. 56. (5) Journal of House of Representatives of Missouri, on November 18, 1822, shows plat of City of Jefferson accepted; and Journal of Senate on December 18, 1822, shows approval of said plat, and on same day, December 18, 1822, it was ordered by the Senate that a copy of said plat of the City of Jefferson, Missouri, be deposited in the Office of the Secretary of State, a copy of same be recorded in the Office of the Recorder of Deeds of Cole County, and that a copy of said plat be furnished the Trustees of the City of Jefferson. See further, An Act to incorporate the inhabitants of the City of Jefferson; Laws of 1838-39, p. 306 and following. (6) All property, real and personal heretofore belonging to the inhabitants of the City of Jefferson, or the trustees thereof in their corporate capacity, shall be and is hereby declared to be vested in the corporation, etc. Sec. 19, p. 309, Laws 1938-39. An Act to amend and reduce into one act the several acts and parts of acts incorporating the City of Jefferson, approved March 27, 1872. Laws 1871-2, p. 397 et seq. (7) All property and property rights, immunities and privileges, now held and possessed by the Mayor, aldermen and citizens of the City of Jefferson, under and by virtue of the present charter of said city, and the amendments thereto, are hereby transferred to and fully vested in the City of Jefferson, etc. Sec. 33, p. 396. (8) The title to Inlots 295 and 296 in the City of Jefferson, Missouri, emanated from the State of Missouri by and through Commissioners' Deeds executed on behalf of the State by the Commissioner of the Permanent Seat of Government, in which said inlots were described simply as Inlot 295 and Inlot 296 without any other description, either by metes and bounds or otherwise. Therefore, the plat of the City of Jefferson, as originally surveyed and platted, controls so far as the limits and boundaries of said inlots are concerned; and the court erred in rendering judgment for plaintiffs for the land in controversy, said land not being within the limits of Inlots 295 and 296 as shown on the plat of Jefferson City. Campbell v. Wood, 116 Mo. 196, 22 S.W. 796; Dolde v. Vodicka, 49 Mo. 98. (9) In an action to quiet title to land plaintiff must prevail solely upon the strength of his own title, and not upon the weakness of the title of his adversary. Cullen v. Johnson, 325 Mo. 253, 29 S.W. (2d) 39; Brown v. Weare, 348 Mo. 135, 136 A.L.R. 286, 152 S.W. (2d) 649; Auldridge v. Spraggin, 349 Mo. 858, 163 S.W. (2d) 1042; Gee v. Bullock, 164 S.W. (2d) 281, 349 Mo. 1154; Sharp v. Richardson, 182 S.W. (2d) 151.

Lewis Hord Cook, H.P. Lauf and John O. Bond for respondents.

(1) Respondents made a strong case of ownership of the land in dispute by proving they held the land through a chain of conveyances conveying all of it to them; by showing they held possession of the land and had constructed Forty Thousand Dollars ($40,000) worth of improvements thereon; and by showing that appellant had virtually confessed ownership to the disputed land to be in their predecessor in title in an injunction suit; and since the appellant failed to show any title whatsoever in itself with or without the aid of Exhibit D, the plat it relies on, the court's decree necessarily had to be in favor of respondents and against appellant. Deal v. Lee, 235 S.W. l.c. 1055; Maynor v. Land & Timber Co., 236 Mo. l.c. 728, 139 S.W. 393; Graton v. Land & Lumber Co., 189 Mo. l.c. 332, 87 S.W. 37; 51 C.J., Quieting Title, sec. 235, p. 257. (2) Since it is undisputed that the State of Missouri conveyed to purchasers, all land to the bank of Weirs Creek, the law presumes the water course was included so that each purchase adjacent to the creek actually owned to its center. Whiteside v. Oasis Club, 187 S.W. 27; Wright Lumber Co. v. Ripley County, 192 S.W. 996, 270 Mo. 121. (3) Exhibit D, the plat offered by appellant was not admissible as an ancient document. It did not purport to be the original. 3 Jones, Commentaries on Evidence (2d Ed.), secs. 1118, 1119, 1120, 1121, 1122; Bell v. George, 204 S.W. 516, 275 Mo. 17; Art. I, Chap. 82, R.S. 1939.

BOHLING, C.

Proceeding to quiet title, instituted by Richard A. Schell and Phyllis F. Schell against the City of Jefferson, Missouri, a municipal corporation, the land being described as follows:

"Parts of Inlots Nos. 295 and 296 in the City of Jefferson, Missouri.

"Beginning at a point on the easterly line of Inlot No. 296 and 90 feet southerly from the northeasterly corner of said Inlot on Walnut Street, thence southerly, along said easterly line, 108 feet and 9 inches to High Street, thence westerly, along said High Street, 208 feet and 9 inches to the southwesterly corner of Inlot No. 295, thence northerly, along the westerly line of said Inlot No. 295, 108 feet and 9 inches, thence easterly, parallel with High Street, 208 feet and 9 inches to the point of beginning."

The City's answer alleged that inlots Nos. 295 and 296 are fractional inlots in said City, lying north of and adjacent to a strip of ground on the north side of Weir's (Ware's) creek; and that the land north of said creek and south of the boundaries of said inlots Nos. 295 and 296, including the creek, as shown on the plat of said City, is the property of the City in fee simple.

Plaintiffs' metes and bounds description shows inlot 296 east of inlot 295 and extends the east line of inlot 296 south along the west line of Walnut street to High street, the north line of High street being 12 feet and 3 inches north of the south bank and in the bed of Weir's creek. The controversy involves the south line of said inlots; i.e., whether it is as described in plaintiffs' petition or as shown on the plat of the City.

The court denied the City's plea and, on the theory the City was a stranger to the title and plaintiffs made a prima facie case by showing possession (Hunter v. Weil (Mo.), 222 S.W. 472, 475 (III); 51 C.J. 257, sec. 235; 44 Am. Jur. 37, sec. 44), adjudged the title to the land described by metes and bounds in plaintiffs. The City appealed. The trial was to the court and our review is de novo on the whole record "as in suits of an equitable nature." Laws 1943, p. 387, sec. 114.

The Congress of the United States provided in the act authorizing Missouri to become a state: "That four entire sections of land be, and the same are hereby, granted to the said State, for the purpose of fixing their seat of government thereon...," the selection to be in accord with the direction of the legislature of the State.¹ The conditions of this act of Congress were accepted and Missouri was thereafter admitted to statehood.²

The Missouri constitution of 1820, Art. XI, directed the first General Assembly of Missouri to appoint Commissioners to select the aforesaid four sections of land, and to "lay out a town thereon under the direction of the General Assembly."³ The General Assembly, conforming to said mandate,...