Schell v. City of Jefferson, 41888

• Decision Date: 11 December 1950
• Docket Number: No. 41888,41888
• Citation: 361 Mo. 495,235 S.W.2d 351
• Parties: SCHELL et al. v. CITY OF JEFFERSON.
• Court: Missouri Supreme Court

Page 351

235 S.W.2d 351

361 Mo. 495

SCHELL et al. v. CITY OF JEFFERSON.

No. 41888.

Supreme Court of Missouri, en Banc.

Dec. 11, 1950.

Rehearing Denied Jan. 8, 1951.

D. F. Calfee, Paul Ewing Allen, Jefferson City, for appellant.

Lewis H. Cook, Jefferson City, Lauf & Bond, H. P. Lauf, and John O. Bond, all of Jefferson City, for respondents.

TIPTON, Judge.

This is an action to quiet title instituted by respondents against the appellant city. The land in question is 'Parts of inlots Nos. 295 and 296 in the City of Jefferson, Missouri.' The trial court found the issue in favor of respondents and appellant has duly appealed.

This is the second appeal in this case. Our opinion in the first appeal is found in 212 S.W.2d 430, 432. We reversed and remanded a judgment in favor of respondents because the trial court refused to admit in evidence and old map found on the walls in the office of the recorder of deeds of Cole County. This map was referred to as exhibit D in the first trial and as exhibit G in the second trial. A metes and bounds description of the land in question and the citation of early statutes dealing with the platting and selling of the various lots in Jefferson City will be found in our first opinion.

Very briefly reviewing these acts we find that the Act of Congress, 3 Stat. 547, authorizing Missouri to become a state provided that four entire sections of land be granted to the state for the purpose of fixing its seat of government. Various acts of the legislature provided for the selection of these sections; that the city 'be called 'city of Jefferson"; that the governor appoint a surveyor to lay out the city; that it should contain at least one thousand lots with the principal street between 100 and 120 feet wide and the other streets not less than 80 feet wide, with alleys 20 feet wide, and the remainder of the tract of land to be laid out into lots of five, ten, twenty and forty acres. The commissioners were appointed according to these statutes and made their report to the legislature. It directed by joint resolutions that the report and other documents on the subject be deposited in the office of the secretary of state for safekeeping. It also directed the secretary of state 'to cause the plan of the city of Jefferson to be made out on parchment, and deposited in his office, * * * and also to furnish the trustees of the city of Jefferson, as soon as may be, with a copy of the plan of said city * * *.' 1 Terr.Laws 985.

Statutes were also enacted that empowered the trustees to sell these lots and to incorporate the city. The commissioners of the permanent seat of government deeded inlot No. 295 on December 11, 1841, and inlot No. 296 on December 4, 1837. The various conveyances from the original deed until the year 1898 conveyed these two lots only by numbers. After that date the description in the deeds then added the metes and bounds.

The evidence in the second trial is considerably different from that in the first trial as will be shown later.

The appellant in its brief states, 'The heart of this case, the vital question to be determined, is: Does the bed and banks of Weir's (Wares) Creek belong to the City of Jefferson, and are Inlots 295 and 296 Fractional Inlots lying wholly North of Weir's (Wares) Creek, or is the City of Jefferson without any title whatever to said creek, and do said inlots extend on the South to the North line of High Street thus entitling plaintiff to all or part of the bed and banks of said creek at that location?' In their brief respondents admit that this is 'the issue before the court.'

As originally platted each inlot in Jefferson City is 104 feet 4 1/2 inches by 198 feet 9 inches. Each block is square and contains four acres with a twenty foot alley and eight inlots. Each block from property line to property line is 417 1/2 feet. Each street is 80 feet wide except Broadway, which is 100 feet wide. Each outlot was exactly five, ten, twenty or forty acres in area. There were some fractional inlots platted.

If inlots Nos. 295 and 296 are not fractional lots then they would be 104 feet 4 1/2 inches by 198 feet 9 inches, and the south part of these lots would extend into Weir's Creek. The original deeds describe them as inlots 295 and 296. There is nothing in these deeds that would indicate they are fractional lots.

The appellant's claim to the abutting creek bank and bed of these two lots is based upon exhibit G. This exhibit is the map which we ruled in the first appeal should have been admitted in evidence. This exhibit has the name of Erich Plump and the year 1849 on it. The evidence showed that it was framed and under glass and had been hanging on the walls of the office of the recorder of deeds of Cole County for at least twenty six years. There are inferences that can be drawn that it has been there a much longer time. This plat has never been inventoried as an official document or recorded. There are no measurements on it. It was probably drawn by Erich Plump who was a member of the board of aldermen of Jefferson City in 1846 and city assessor in 1849.

Under section 114b of the General Code of Civil Procedure, Mo.R.S.A. Sec. 847.114(b), the appellant requested the trial court to file an opinion containing the grounds for its decision. The essential parts of the trial court's opinion are as follows:

'In my judgment, the decision in this case hinges on the authenticity of this map.

'The Supreme Court did not reverse my decision because it disagreed with my criticisms of this map set forth in my opinion in the first case. It reversed my decision because I excluded the map; and this cause was returned to this Court so that both sides might have an opportunity to present evidence for and against authenticity. The criticisms of this map expressed by me in my original opinion still stand and still state my views. I bow to the decision of the Supreme Court that the unilateral evidence supporting the map at the first trial required its admission in evidence and consideration by me. I am ready to agree with the Court, if that is required, that the map and evidence supporting it at the first trial warranted and required a finding for the city. However, I am not prepared to rule that virtually the same supporting evidence, introduced at this trial by the city, and the attentuated inferences the Supreme Court held allowable from that evidence, are sufficient to warrant and require a ruling in this case for the city in the face of the countervailing evidence of the plaintiffs.

'I reiterate everything I said in my original opinion in criticism of this map and of the city's evidence, and apply these criticisms in this case. I direct attention of the parties to the testimony of F. E. Ross, Surveyor, which in my opinion easily counter-balances and destroys the validity of any reasonable theory that this map is a true copy of a proper ancient document, the original having been destroyed, and that I must be governed by it in deciding the title to the property in suit. I do not deem it necessary to recapitulate the testimony of Mr. Ross. The parties are as familiar with it as I am. I think it suffices to say that I do not regard the testimony of Richard D. Fowler, the City Engineer, as impairing the force either of the Ross testimony or my criticisms of the map. On this record, I regard the map as unreliable and as an improper instrument for carving out real estate areas in this city. It is the only evidence I have from the city to justify its claim of title. Accordingly, I rule that the...