State v. Muench

• Decision Date: 02 February 1910
• Citation: 225 Mo. 210,124 S.W. 1124
• Parties: STATE ex rel. GAVIN v. MUENCH et al.
• Court: Missouri Supreme Court

124 S.W. 1124

225 Mo. 210

STATE ex rel. GAVIN v. MUENCH et al.

Supreme Court of Missouri.

February 2, 1910.

1. COURTS (§ 172) — LIMITED JURISDICTION — TITLE TO REAL PROPERTY.

In a suit in the circuit court of the city of St. Louis to enjoin the obstruction of half of a street, the answer alleged that the street had not been opened by any order of the county court, nor had a plat thereof been made and filed, and had not been used as a public highway by the public for 10 consecutive years prior to the filing of the petition. The answer also alleged that the street had never been accepted by the county court as a public highway or used by the public as such since its dedication, wherefore defendant claimed title to the middle of the street adjacent to lots owned by him, with the right to erect the fence, etc. Held that, since a decree for plaintiff would charge the land claimed by defendant with an easement and invest title in the street in that extent in the county, title to realty was involved within Rev. St. 1899, § 564 (Ann. St. 1906, p. 593), providing that suits whereby the title to realty may be affected shall be brought within the county within which the realty is situate, so that the court had no jurisdiction where the realty was situate in the county of St. Louis, outside the limits of the city.

2. PROHIBITION (§ 28) — QUESTIONS CONSIDERED.

In prohibition to prevent respondent from taking further proceedings in a suit on the ground of want of jurisdiction of the subject-matter, questions which go to the merits of the case cannot be considered.

In Banc. Petition for prohibition by the State, on the relation of Stephen J. Gavin, against Hugo Muench and others. Writ awarded.

At the suggestion of relator, made in his petition filed herein, on July 23, 1909, one of the judges of this court issued a preliminary rule to respondents, requiring them to show cause why a writ of prohibition should not issue herein made returnable October 12, 1909.

The facts, as appear from the petition and the return made thereto, are substantially as follows: Hugo Muench, one of the respondents, at all the times herein mentioned was one of the judges of the circuit court of the city of St. Louis, and the other respondents, as well as the relator, were residents of said city. On December 6, 1907, respondent Robert R. Hutchinson filed in the circuit court of said city his petition for an injunction against relator as defendant, claiming relief in the matters hereinafter stated; and on the same day said Hutchinson, as curator of respondent, Mary H. Anderson, filed her petition also against relator as defendant in said court, praying for same relief. The relator filed a demurrer in each of said causes, raising the question of the jurisdiction of said court over the subject-matter of each of said suits. On February 18, 1908, by agreement of parties, said causes were, by order of court, consolidated; Mary H. Anderson in the meantime having reached the age of her majority. The petitions in said causes were identical in substance, and they will, for that reason, hereinafter be referred to as one case.

The petition of plaintiffs, respondents here, in said cause stated that Robert R. Hutchinson and Mary H. Anderson were the owners of lots Nos. 8, 9, 10, and 11, in Hutchinson's subdivision, lying entirely within the county of St. Louis, in the state of Missouri; that on June 21, 1870, one E. C. Hutchinson, from whom respondents claim title to their property, had duly executed and acknowledged a plat of said Hutchinson's subdivision, which said plat was recorded with the recorder of deeds of said county of St. Louis; that the relator, Stephen J. Gavin, was the owner by purchase on June 19, 1905, of lots 5 and 6 of said Hutchinson's subdivision, lying in the county of St. Louis; that upon said plat, as filed by said E. C. Hutchinson, a street 60 feet broad and designated as Barnes avenue, lying between the property owned by the respondents and the property of the relator, was dedicated as a public road forever; and that a street 50 feet wide, running from said platted Barnes avenue in a northerly direction to the northernmost limits of said subdivision, along the east line of relator's lot No. 5, was dedicated as a public road forever.

Respondents' petitions further state: "That said Barnes avenue and said street 50 feet wide, extending north and south between said lots 4 and 5, have not heretofore been opened by any order of the county court of said St. Louis county, nor a plat made thereof and filed with the clerk of said county court, nor have said roads or either of them been used as public highways by the traveling public for a period of 10 consecutive years next prior to the filing of this petition, nor has there been any public money or labor expended upon said roads or either of them for said period of 10 consecutive years." And respondents' said petitions further state: "That the said Gavin (meaning the relator herein) has denied that said Barnes avenue has ever been accepted by the said county court as a public road, and that said Barnes avenue has never been used by the public as a public road at any time since its dedication as aforesaid, and that said county court has declined to assume jurisdiction of said Barnes avenue as a public road. Relator further states to the court that said petition of respondents thereupon proceeded to set up that the relator had erected upon that portion of Barnes avenue lying next his lots Nos. 5 and 6 and within the middle line of said Barnes avenue a certain railroad embankment and switch track and a certain fence, and that said relator had suffered to remain upon the middle line of said street 50 feet wide a certain fence; that, by reason of said fences and embankment, respondents were deprived of their easement of ingress and egress upon and over said Barnes avenue, and said street 50 feet wide lying next to the lots of the relator within the middle line of said streets: Wherefore the respondents asked for damages and that said embankment and fences shall be removed," and that he be permanently enjoined from replacing or maintaining them in said streets, etc.

"Relator states that under the Constitution and laws of the state of Missouri, and more particularly by section 564 of the Revised Statutes of Missouri of 1899, it is provided that suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought within the county within which such real estate, or some part thereof, is situated; that by the allegations of respondents' petitions filed herein all of the real estate mentioned in said petitions as belonging to respondents and relator was situated in the county of St. Louis, state of Missouri, and without the limits of the city of St. Louis, but that said suits, and both of them, were brought in the circuit court of the city of St. Louis as aforesaid and were then pending before Judge Hugo Muench, respondent herein, as aforesaid; that from the allegations of said petitions, and both of them, it appears that said streets had been abandoned by reason of their nonuser by the public for the period of 10 consecutive years preceding the filing of said petitions, as will more particularly appear from sections 9472 and 9694 of the Revised Statutes of Missouri of 1899, and that therefore the title to said streets, and each of them, had vested up to the middle line of said streets in the owners of the abutting property; that your relator was therefore the owner in fee up to the middle line of said streets where the same adjoined his said lots 5 and 6, and that, therefore, the obstructions complained of in respondents' petitions were erected upon real estate the title of which was vested in the relator, and that the respondents, and each of them, were seeking to charge said property with an easement in favor of said respondents, and that therefore the title to said property was necessarily affected by said actions, and both of them. Your relator further states that by the laws of the state of Missouri, as aforesaid, the said circuit court of the city of St. Louis and Judge Muench, the respondent herein, as one of the judges of said court, was without jurisdiction of the subject-matter to try said causes; that your relator, as will appear from the files in said causes submitted herewith, filed in both actions demurrers to said petitions, and for grounds for said demurrers stated that said court was without jurisdiction of the subject-matter of said actions, in that the same was for the possession of and affected title to real estate situate in St. Louis county, but that respondent Judge Muench overruled said demurrers, and thereafter overruled the general demurrers filed by relator; that thereafter relator filed answers in said causes, in which answers relator set up the plea to the jurisdiction of said circuit court of the city of St. Louis and claimed title in the half of said streets lying next to his said lots 5 and 6 by reason of the abandonment of said streets, and for these reasons, together with other defenses, stated that the respondents Robert R. Hutchinson and Mary H. Anderson were not entitled to charge his said property with an easement of ingress and egress, and were not entitled to any rights over his said property. Relator further shows that said respondent Judge Muench overruled said pleas to the jurisdiction and proceeded to try and determine said causes, and thereafter, to wit, on the 15th day of July, 1909, as will appear by the files in said causes herewith submitted, said respondent Judge Muench found in favor of said respondents Robert R. Hutchinson and Mary H. Anderson, and against said relator, and found that said streets were duly dedicated and existing streets, and that said respondents had a right to ingress and egress over said streets and over that half lying next to the lots of the relator, and did order and decree that...