The Town of Otterville v. Bente

• Decision Date: 27 February 1912
• Citation: 144 S.W. 822,240 Mo. 291
• Parties: THE TOWN OF OTTERVILLE v. IDA E. BENTE and J. Y. BENTE, Appellants
• Court: Missouri Supreme Court

144 S.W. 822

240 Mo. 291

THE TOWN OF OTTERVILLE v. IDA E. BENTE and J. Y. BENTE, Appellants

Supreme Court of Missouri, Second Division

February 27, 1912

Appeal from Cooper Circuit Court. -- Hon. W. H. Martin, Judge.

Affirmed.

Bente & Wilson for appellants.

When the plat was filed the lands therein described as streets and alleys should have been taken charge of by the city and used for the purposes for which it was set aside as provided by the statutes. R. S. 1855, secs. 1, 8; R. S. 1899, secs. 8955 8959; R. S. 1855, p. 1535; R. S. 1865, p. 247; R. S. 1879 sec. 6569; R. S. 1889; sec. 7309. There is no evidence any where in the records to show that the town ever accepted the streets in question. The town must accept the streets. Mere user by the public will not establish a street. Downend v. Kansas City, 156 Mo. 60; Downend v. Kansas City, 71 Mo.App. 529. The evidence clearly shows that plaintiff never accepted the streets in question and if it did it immediately abandoned them for they never were used as streets. State v. Young, 27 Mo. 259; R. S. 1899 sec. 9472. Plaintiff should have accepted said streets by user or by an ordinance. Vossen v. Dantel, 116 Mo. 379. There can be no dedication of land to a city for a street without an acceptance of the same by it. St. Louis v. St. Louis University, 88 Mo. 155. Prior to the adoption of the statutes of 1865, the Statutes of Limitations ran against the government as well as against the citizen. The statute invoked by the defendants took effect on August 1, 1866, and was prospective only in its operation. R. S. 1855, p. 1045; R. S. 1865, p. 745, 746; Dice v. Hamilton, 178 Mo. 89; Ins. Co. v. St. Louis, 98 Mo. 422; Mississippi Co. v. Vowels, 101 Mo. 225, 204 Mo. 98. Defendants and their predecessors had entered into the possession of the lands in question prior to 1865 and are still in the possession of the same. The plaintiff's right of action has long since been barred. The right of entry accrued before its enactment. Dice v. Hamilton, 178 Mo. 89; Ins. Co. v. St. Louis, 98 Mo. 422; McCune v. Goodwillie, 204 Mo. 306; Stone v. Perkins, 217 Mo. 586; Hubbard v. Stevens, 218 Mo. 615. Defendants or their predecessors have been in possession of said lands since 1858 to 1860, and the ten-year Statute of Limitation has barred plaintiff's cause of action. Dice v. Hamilton, 178 Mo. 89; Ivy v. Yancey, 129 Mo. 501; R. S. 1899, secs. 4262. So also the thirty-year Statute of Limitation has barred the plaintiff. R. S. 1899, secs. 4268; Campbell v. Greer, 209 Mo. 215.

Roy D. Williams for respondent.

(1) Wear and Sanders are the common source of title. They, in 1859, duly acknowledged and filed a plat of their second addition, dedicating the ground sued for as a street of the city of Otterville. Those claiming uner Wear and Sanders are estopped to question this plat. Hannibal v. Heirs of Draper, 15 Mo. 640; Hannibal v. Heirs of Draper, 36 Mo. 336; Nayler v. Harrison, 207 Mo. 350. (2) Otterville was first incorporated in 1857, and plat was filed in 1859. The State at that time did not require a plat to be accepted by a city. A requirement that a plat should be accepted by a city first made its appearance in our laws in the Acts of 1887 (Laws 1887, p. 227). The case cited by appellant lays down the proposition that in 1859 no acceptance was necessary. Downend v. Kansas City, 156 Mo. 60. (4) Such possession as shown by defendant could not start the Statute of Limitations, for there is no privity between the "Irishman" and the defendants. To tack possessions, privity is necessary. Cripen v. Hannaban, 50 Mo. 536; Adkins v. Tomlinson, 121 Mo. 494.

BLAIR, C. Roy, C., concurs.

OPINION

BLAIR, C.

According to the plat of Wear and Saunders' Second Addition to the Town of Otterville, Missouri, Boonville street running north and south, and Grover street running east and west, intersect each other in the northwestern part of that addition. The purpose of this action is to open that part of Grover street running west from its intersection with Boonville street four hundred and twelve feet to the west line of the addition and that part of Boonville street running north from the same point two hundred and seventy feet to the north line of the addition.

At the beginning of the trial the following stipulation was entered into by the parties and filed:

"In order to avoid unnecessary costs, the following facts are to be taken as agreed to upon the trial of this case.

"First. The town of Otterville was incorporated by an act of the Legislature in 1857 and that said act was amended in 1859, and that said town was re-incorporated under and in accordance with the general statutes of Missouri for the year 1899, and that said re-incorporation of said town occurred within the last three or four years, and that either party shall have the right to read said laws in evidence without any further proof of the same, and that said town of Otterville is now and was at the commencement of this suit duly incorporated as a village under Laws of 1899.

"Second. That Sarah A. Saunders and husband S. M. and Wm. G. Wear, is the common source of title to said land in question.

"Third. That on September 13, 1859, the plat of Wear and Saunders' second addition to the town of Otterville, Cooper county, Missouri, was filed in the recorder's office of Cooper county, Missouri, and that the land in question is covered by said plat and that Wear and Saunders' second addition to Otterville, Missouri, was laid out by the owners of said land.

"Fourth. That the defendants are in possession of the land sued for and were at the time of the institution of this suit and for a long time prior thereto.

"Five. The issue to be tried is the right to the possession of the land in question."

Counsel for defendants admitted on the trial that "Wear and Saunders' second addition to the town of Otterville covers the best portion of the village of Otterville as it now exists" and that "all the lots, as shown by the copy of the plat of Wear and Saunders' Second Addition to the village of Otterville, all the lots east of Boonville street have been disposed of and improved, and all the alleys and streets, as shown by the plat, have been opened and used, but there have been no improvements west of Boonville street, nor have any streets or alleys been opened west of Boonville street." That part of the addition west of Boonville street is a very small part of the whole.

A copy of the original plat was admitted, the objection to it as a copy being expressly waived, and evidence that the original was properly acknowledged and filed in the office of the recorder of deeds September 13, 1859, and that it had subsequently been lost, was offered and not controverted. Only a part of the plat appears in the record in this court.

For the defendants there was evidence that about 1861 one Hinch took possession of the west end of that part of Grover street involved in this action and retained possession five or six years. Thereafter he abandoned his possession and about 1870 one Arney took possession and fenced a larger tract including that formerly fenced by Hinch. The lots south of and abutting on the part of Grover street here in dispute were owned at the time of the trial by George Arney and Thomas Thompson, Thompson owning two and Arney the rest. The lots on the north were owned by the heirs of S.W. Potter. No deed to defendants was in evidence nor does the evidence disclose how long they had been in possession of...