Tatum v. City of St. Louis

Decision Date22 December 1894
Citation125 Mo. 647,28 S.W. 1002
PartiesTATUM v. CITY OF ST. LOUIS.
CourtMissouri Supreme Court

Ejectment by Joseph Tatum against the city of St. Louis. There was a judgment for defendant, and plaintiff brings error. Reversed.

J. T. Tatum and Leverett Bell, for plaintiff in error. Wm. C. Marshall, for defendant in error.

MACFARLANE, J.

The action is ejectment to recover possession of a parcel of land in the city of St. Louis fronting 398 feet on the Mississippi river, and having a depth back of 307 feet. The land is claimed by the city as part of its public wharf. The answer was a general denial and a plea of the statutes of limitation. The case was tried to the court without a jury, and a verdict and judgment was rendered for defendant, and plaintiff appealed.

Plaintiff claims title through concession made to Joseph Brazeau, and confirmation thereof by act of congress in 1836. These concessions were bounded on the east by the Mississippi river, making a frontage on the river of 12 arpens. Plaintiff, who sues as trustee for Mrs. Virginia Lynch, claims title to the land in question as being accretions to the land so conceded and confirmed. Without tracing the title from Brazeau, as was done on the trial, it will be sufficient to say that in 1836 the original concessions were divided into five lots, each of which fronted 398½ feet on the Carondelet road, now avenue, and extended east to the river, and John B. Douchouquette about that time became the owner of lot 4 of said division. At this time the distance from Carondelet avenue to the river was about 1,800 feet, while at the trial it was about 2,800 feet. There was consequently about 1,000 feet between the east line of the lot, which was then the river bank, and the river bank as it is at present. The land in dispute is a part of this added land. In 1839 the west half of all five of these lots was subdivided into an addition to the city. Columbus street, running north and south through the center of these lots, formed the eastern boundary of the addition. In 1850 the title of that part of lot 4 lying between Columbus street and the river was vested as follows: Mrs. Lynch held an estate for life in the whole, and an undivided one-fourth of the remainder in fee; and Victoria Douchouquette, now Victoria Whyte, an undivided three-fourths of the remainder in fee. On May 17, 1870, by proper deeds, the title of Mrs. Lynch was vested in Joseph T. Tatum as trustee for her. Since the commencement of this suit, the interest of Mrs. Lynch has been assigned to Mrs. Whyte, who has been substituted as plaintiff. The evidence showed that as early as 1845 an island, known as "Duncan's Island," formed in the river opposite the land comprising the original Brazeau concession, but it is conflicting as to whether the southern end thereof extended as far south as the lot in question. Originally a part, at least, of the channel of the river flowed between the island and the Missouri shore. This part of the channel subsequently became a mere slough, and dikes were run out from the main shore, connecting it with the island. It does not appear that any of these dikes were built as far south as said lot 4. The slough was subsequently filled entirely, and the river bank was changed to the east side of the island. As has been said, the land thus formed extended east from plaintiff's original boundary about 1,000 feet. Main street was established over this new-made land, and the river front was declared by an ordinance of the city to be a public wharf. The land claimed in this suit is a part of that dedicated by the city as a wharf, but the evidence fails to show any improvement as such. Much evidence was introduced for the purpose of proving that the slough between the island and the shore was filled, and the new land formed, by means of the obstruction of the water by the dikes, by the construction of the Iron Mountain Railroad on trestles along the slough, by filling with dirt taken from other portions of the road, by filling by the city, and constructing the wharf. Defendant claims on this appeal that — First, it was not shown on the trial that defendant was in possession of the land sued for; second, that the action is barred by the statutes of limitation; third, that the land is not an accretion to plaintiff's original tract; fourth that the city is entitled to an easement in the land for a public wharf by virtue of a license conferred upon it by the plaintiff in 1851; fifth, that an outstanding title in Thomas Marshall was shown.

1. At the conclusion of plaintiff's evidence in chief defendant prayed the court to nonsuit him, for the reason that there was no evidence that it was in possession of the property at the commencement of the suit. This prayer was properly denied, for the reason that the possession of defendant was, by the plea of the statute of limitation, substantially admitted. By this plea defendant states "that it has been in open, notorious, continuous, peaceable, and adverse possession of the premises described in the petition since, to wit, 1850, claiming to be the owner thereof, against the plaintiffs and all other persons." Under this plea, possession at the commencement of the suit must be taken as admitted, and proof thereof was unnecessary.

2. At the conclusion of the evidence the court made this finding or declaration of law: "The proposition that the land in question was formed by natural accretions to plaintiff's land on the main shore is not proven by the evidence." No other declarations of law was asked by either party, or given by the court. The...

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  • State ex rel. State Lands Com'n v. Su
    • United States
    • California Court of Appeals
    • December 20, 1993
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    ......Gaven, 37. Mo. 557; St. Louis Public Schools v. Schoenthaler's. Heirs, 40 Mo. 372; Myers v. St. Louis, 82 Mo. 367; Campbell v. Laclede Gas Co., 84 Mo. 353;. St. Louis v. Lemp, 93 Mo. 477; Ellinger v. Mo. Pac. Ry. Co., 112 Mo. 525; St. Louis v. Mo. Pac. Ry. Co., 114 Mo. 13; Tatum v. St. Louis, 125 Mo. 647; Sweringen v. St. Louis, 151 Mo. 348; St. Louis v. Whitman, 235 Mo. 39. (3) Conveyance of land. bordering towpath wholly made from the grantor's land,. and lying between land conveyed and navigable river, there. being no land on opposite side of towpath, conveyed the ......
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