Skrainka v. Allen

• Court: Missouri Court of Appeals
• Writing for the Court: GANTT
• Citation: Skrainka v. Allen, 2 Mo. App. 387 (Mo. App. 1876)
• Decision Date: 10 June 1876
• Parties: SKRAINKA, Respondent, v. ALLEN, Appellant.

2 Mo.App. 387

SKRAINKA, Respondent,

v.ALLEN, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 10, 1876.

1. A. filed a plat dedicating to public use the streets shown thereon, so far as they were on his own land. He subsequently acquired that part of the land shown on the plat which belonged to others when the plat was filed, and thereafter returned for taxation so much of it as was not in the streets shown in the plat, describing it as bounded by these streets, and in such manner as to render his description unintelligible except by reference to this plat. Held, that this was evidence tending to show a dedication good on general legal principles.

2. (On application for an appeal.) On authority of Haegele v. Mallinckrodt, held, that the title to real estate is not involved in this action, and an appeal to the Supreme Court will not lie.

APPEAL from St. Louis Circuit Court.

Affirmed.

Horatio D. Wood, for appellant, cited: Gen. Stat., ch. 44, sec. 1; Ang. on Highw., sec. 134; Dill. on Mun. Corp., sec. 498; Holdane v. Trustees, etc., 21 N. Y. 479; Woodyer v. Hadden, 5 Taunt. 125; McLaughlin v. Stevens, 18 Ohio, 94; Becker v. City of St. Charles, 37 Mo. 13; Missouri Institute of the Blind v. How, 27 Mo. 211; Brinck v. Collier, 56 Mo. 160; Kelly v. City of Chicago, 48 Ill. 388; Irwin v. Dixon, 9 How. 30; Banaclough v. Johnson, 8 B. & Ad. 103; Lee v. Lake, 14 Mich. 12; Detroit v. Detroit & Milwaukee R. R. Co., 22 Mich. 209; Proctor v. City of Lewiston, 25 Ill. 153; Cape Girardeau & Bloomfield M. & G. R. Co. v. Renfroe, 58 Mo. 265; Wag. Stat. 1168, sec. 14; Fisher v. City of St. Louis, 44 Mo. 482; Rees v. City of Chicago, 38 Ill. 322; Hyde's Admr. v. Jamaica, 2 Dougl. (Mich.) 257, 285; 2 Greenl. on Ev., sec. 662; Parsons v. Trustees, etc., 44 Ga. 529.

R. E. Rombauer, for respondent, cited: Brown v. Manning, 6 Ohio, 298-303; Bitting v. Waterman's Appeal, 17 Pa. St. 211, 216; City of Cincinnati v. The Lessee of White, 6 Pet. 431; Wider v. City of St. Paul, 12 Minn. 192; Mankato v. Willard, 13 Minn. 13; Commonwealth v. Moltz, 10 Barr, 530; Alvord v. Ashley, 17 Ill. 363; Banks v. Ogden, 2 Wall. 57; Missouri Institute of the Blind v. How, 27 Mo. 211.

GANTT, P. J., delivered the opinion of the court.

We adopt in this case the statement made by Mr. Wood, of counsel for appellant, as follows:

This is an action upon certain tax-bills issued for the construction of Arrow or Shenandoah street, from Summer street to Second Carondelet avenue.

The defense is that said portion of Arrow street was never condemned by the public authorities, or dedicated to public use.

The reply sets up that, anterior to the passage of the ordinance under which the work was done, a dedication of the street as a public highway had been made by appellant.

The case was tried upon the following agreed statement of facts, subject to the written objection of either party, as to the relevancy of any part of said agreed statement:

1. That the defendant had, long anterior to the filing of the plat hereinafter referred to, dedicated to public use that part of Arrow street on said plat which lies east of Summer street; that said dedication was to the width of sixty feet; that the exact location of said Arrow street, east of Summer street, is correctly shown on said plat, and that the lines--forming respectively the northern boundary of block 802 and the southern boundary of blocks 786 and 787, as shown on said plat--are a continuation respectively of the

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

[ a b c represents triangular tract of land purchased on May 8, 1871, by appellant from Charless and McPheeters.] southern and northern line of Arrow street, east of Summer street, and that Arrow and Shenandoah streets are one and the same street, known by different names.

2. That, on June 21, 1869, the defendant caused to be made and filed in the county recorder's office of St. Louis county a plat of his additions to the city of St. Louis, which was acknowledged by defendant in due form of law, and which had inscribed on it the following dedication:

“This plat is filed for the purpose of connecting in one plat all my additions heretofore made, lying between Carondelet avenue and Second Carondelet avenue, in the city of St. Louis, and also for the purpose of relinquishing to public use any and all streets and alleys, as indicated on the plat, which have not been heretofore relinquished on the property and addition represented.

Witness my hand and seal this 21st day of June, 1869.

[Signed]

THOMAS ALLEN. [L. S.]”

3. That a copy of such parts of “said plat as plaintiff deems material to the issues” is below set out.

The letters a b c and e f d not being contained on the original plat, but inserted on this copy for the sake of reference. It being understood that the original plat may be given in evidence, and in case of any variance between the original plat and the copy of the part thereof herein inserted, such original plat shall govern.

4. That the line a c represents the line of a survey, and that the triangular tract of land inclosed within the points and lines a b c was, anterior and up to May 8, 1871, owned by other parties than the defendant; but that all land represented on said plat, and lying south of the line a c, as far as the same was not previously dedicated to public use, was, on June 21, 1869, owned by defendant.

5. That the defendant has at no time since the year 1864 returned for taxation any property lying between the line a e and the northern boundary line of block 802, as shown by said plat, with the exception of the small triangular tract bounded by the points and lines e d f, as shown on said plat, and that, in the tax returns made by his agents, and partly by himself, since 1864 up to 1873, he bounded his property, lying in the west half of block 802, on the north by Arrow street or Shenandoah street, and returned for taxation only the property owned in block 802, as bounded by the limits as said block, and that the most northern lot in the east half of block 802 fronts on Summer street.

6. That the defendant, in his tax returns made in September, 1871, and ever since, included only such parts of blocks 787 and 786 as are inclosed by the lines of said blocks, as shown on said plat--omitting all parts thereof covered by Summer street, Elizabeth street, and Arrow street, as such streets are shown on said plat, as well as the alleys running through block 787, and that no property was assessed to, or taxed against, defendant, since the year 1871, lying north of the line a e, excepting such as is inclosed within the boundaries of blocks 786, 787, and 788, as shown on said plat, exclusive of the alleys of said blocks.

7. Relates to the ordinance under which the work was done, passed on July 10, 1872.

8. Relates to the making of the contract, the doing of the work, and the receipt of the tax-bills sued upon.

9. That defendant is a resident of the city of St. Louis; that no notice was given to plaintiff by any one, until after the completion of the work, of defendant's claim; that said Arrow or Shenandoah street, between Summer street and Second Carondelet avenue, was not a public highway, but was defendant's private property.

10. The work and materials furnished by plaintiff were of uniform character and value along the entire length of said Arrow street, between Summer street and Second Carondelet avenue, as the city claims said street to be, and the lots of defendant, adjoining thereon, have been charged in said special tax-bills according to their frontage on said street as the city claims it.

11. That the point “ f,” where the line a e intersects the southern boundary line of block 787 (as shown on the plat hereinabove stated), is nearer to the point of intersection of said southern line of the block with the eastern line of the alley next west than to the point of intersection of said southern line of the block with the west line of Summer street; and that more that one-half of the area of that part of Arrow or Shenandoah street as the city claims it, which lies directly north of block 802, lies south of the line a e (as shown on said plat).

12. That Arrow or Shenandoah street runs east and west, and Summer street north and south.

The following points are inserted in the agreed statement of facts on behalf of the defendant:

13. That neither the defendant, nor those under whom he claims the land occupied by that portion of the street in controversy, ever conveyed by deed to the city or county any portion of said street; and that no portion of said street has ever been condemned for public use.

14. That a ravine run across Arrow street, now called Shenandoah street, from north to south, at a point near Summer street, and that, anterior to the improvement of the street by plaintiff, it had never been used by the public as a highway, being impassable.

15. That no improvements were made upon said street, and no action was taken by the municipal authorities with reference to the improvement of said street, prior to the passage of the ordinance mentioned in plaintiff's petition.

16. That defendant was absent from the city, and had no knowledge that plaintiff was working upon the street and making the improvements sued for, until some time after the work was completed; nor had his agent any such knowledge.

17. That on May 8, 1871, Charlotte T. Charless, McPheeters, and others conveyed to the defendant the triangular-shaped tract of land included in the lines a b c, as shown in the plat embodied in the statement, a certified copy of which conveyance is hereunto attached and marked Exhibit “B.”

18. That the triangular tract of land included within the lines a b c, as shown upon the plat embodied in the statement, and as also indicated upon the plat recorded in plat-book 8, page 74, filed on June 21, 1869, contains one and seventeen one-hundredths acres; and that prior to the purchase of the said tract by defendant, and until the...