Thomas v. Hunt
| Decision Date | 26 May 1896 |
| Parties | Thomas, Appellant, v. Hunt et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Reversed and remanded.
Frank Titus for appellant.
(1) The title to land used for purposes of street or highway is in the adjacent proprietors. Gaus Co. v. Railroad, 113 Mo. 309; Snoddy v. Bolen, 122 Mo. 479; Hannibal Co. v. Schaubacher, 57 Mo. 582; Thurston v. St Joseph, 51 Mo. 512; Ferrenbach v. Turner, 86 Mo. 419; Peck v. Smith, 1 Conn. 103; Ford v Railroad, 14 Wis. 609; Peck v. Denniston, 121 Mass. 18; Angell on Highways [3 Ed.], secs. 313-315; 9 Am. and Eng. Encyclopedia of Law, 375; Elliott, Roads and S. 549. (2) And the action in form of ejectment will lie by lot owner against an occupant of abutting highway. St. Louis v Railroad, 114 Mo. 13; Gaus Co. v. Railroad, 113 Mo. 309; Cummings v. St. Louis, 90 Mo. 264; Pemberton v. Dooley, 43 Mo.App. 176; Railroad v. Rodel, 89 Ind. 128; Indianapolis v. Kingsbury, 101 Ind. 211; Carpenter v. Railroad, 24 N.Y. 655; Cohoes v. Co., 134 N.Y. 397; Smeberg v. Cunningham, 96 Mich. 378; Earll v. Chicago, 136 Ill. 277; Elliott on Roads, 536. (3) The dedication of land to public uses may be either statutory or a common law dedication. Heitz v. St. Louis, 110 Mo. 618; Buschman v. St. Louis, 121 Mo. 523; Cohoes v. Del. Co., 134 N.Y. 397; Bauman v. Boeckeler, 119 Mo. 189. And until the street is actually opened and used, and the authority of the city exercised thereon, the city is not held to any public accountability. Hunter v. Weston, 111 Mo. 177. (4) Nor until such exercise of power by city can it sue an obstructor of such street. City v. Railroad, 37 West Va. 106; Commonwealth v. McNaugher, 131 Pa. St. 55; Jackson v. People, 9 Mich. 111; Bryans v. Almand, 87 Ga. 564. (5) Nor is the legal status of highway impaired by failure of city to exercise authority thereon or to improve it. St. Louis v. Railroad, 114 Mo. 13. (6) The statute of limitation does not run against a public use; and no adverse claim or possession whatever of a highway can confer title. St. Louis v. Railroad, supra; sec. 6772, R. S. 1889; Williams v. St. Louis, 25 S.W. 561; Angell on Highways, sec. 324; Commonwealth v. Morehead, 118 Pa. St. 344. (7) Nor does nonuser constitute an abandonment of the public use. Roanoke Co. v. Co., 108 Mo. 50. (8) The instruction given for defendants was more liberal than they were entitled to. (9) The jury found as a fact that defendants' alleged possession had not ripened into a title. With plaintiff's paper title she was entitled to a verdict as stated in instruction 5. Bledsoe v. Sims, 53 Mo. 305. (10) Plaintiff's and defendants' common source of title in Ranson and wife, and the evidence of Judge Cary was sufficient. Finch v. Ullman, 105 Mo. 255. (11) And the right of property is in issue and involved herein as well as the right of possession. Chapman v. Dougherty, 87 Mo. 617. (12) The fact of possession is admitted by a plea of general denial. La Riviere v. La Riviere, 77 Mo. 517; Kerr v. Leighton, 2 G. Green (Iowa), 196. (13) The judgment duly and properly protects all rights of the public that could be demanded were the city a party. St. Louis v. Railroad, 114 Mo. 13. The public right of passage is but an easement. Snyder v. Warford, 11 Mo. 513.
John W. Snyder for respondents.
(1) On July 29, 1858, the dedication of the plat of Ranson & Tally's addition, vested the fee, as well as the easement, to the thirty feet, then called George street, and afterward Tracy avenue, in the county of Jackson. R. S. of 1855, sec. 8, p. 1536; G. S. of 1865, sec. 8, p. 248; Hannibal v. Draper, 15 Mo. 639; Ragan v. McCoy, 29 Mo. 366; Reid v. Board, 73 Mo. 304; Glasgow v. St. Louis, 87 Mo. 682; 15 Mo.App. 123. (2) But if it did not so vest the fee it is manifest that the three platters of said addition kept the fee themselves. Campbell v. City of Kansas, 102 Mo. 339. (3) But George street was properly vacated in strict conformity to legislative provisions. Laws of 1866, page 200; Laws of 1877, page 186. Even a town itself can be disincorporated, in the same way, by the same power, and without being summoned to its own funeral. Laws of 1866, sec. 30, p. 244. (4) If it was not vacated, still no suit in ejectment can be brought in Missouri, for "street property" by an adjoining property owner. When, as here, the fee is in the city, the city brings the suit. Hannibal v. Draper, 15 Mo. 639; California v. Howard, 78 Mo. 88; Armstrong v. St. Louis, 69 Mo. 309; St Louis v. Railroad, 114 Mo. 13. (5) But if George street was properly vacated, by order of the county court, in 1878, as we contend, then plaintiff can not recover, for three reasons: First. The thirty feet reverted to the owners of the property on the west side, or to the grantors of the Ranson & Tally plat. Second. If the east fifteen feet went to the owner of the unplatted lands on the east side of said thirty foot strip, the said fifteen feet were not put into Primrose Hill addition. Third. Plaintiff sued on theory that said thirty feet constitutes, even now, a street, and can not recover on any other theory in this court.
OPINION
The action is ejectment to recover a strip of land fifteen feet wide and one hundred and twenty feet long, in Ranson and Tally's addition to Kansas City. The petition was in the usual form, and the answer was a general denial.
Ranson and Tally's addition was duly platted and the plat recorded in 1858. Tracy avenue was the eastern boundary of the addition and was marked on the plat as being thirty feet wide. In June, 1878, an order was made by the county court of Jackson county purporting to vacate said avenue. The land lying east of and adjoining Tracy avenue was known as land 16 and and was owned by the proprietors of the platted addition.
In 1880 land 16 was duly platted as Primrose Hill addition. This plat shows Tracy avenue, but no part of it is upon the land platted. Lot 1 of said addition, one hundred and twenty feet deep, north and south, abuts on the east side of Tracy avenue.
In 1886 an ordinance was passed by the council of the city of Kansas City entitled, "An ordinance to widen and establish Tracy avenue from Sixth street to Independence avenue." This ordinance purported to establish an avenue fifty feet wide, the east side of which corresponds with the west side of said lot 1, and to condemn land therefor.
Plaintiff is the owner of said lot 1, having acquired title thereto in 1889, and the land she sues to recover is a strip fifteen feet in width lying west of and adjoining her lot, and being the east part of the land heretofore designated as Tracy avenue.
Tracy avenue lies north and south between Sixth street on the south and Independence avenue on the north. The land in controversy is of that part of Tracy avenue immediately south of Independence avenue. The last named avenue is graded and improved, while the land in suit, or the top of it, is from twenty-five to forty feet above the grade of Independence avenue, and is inaccessible from it, though from Sixth street north it is graded nearly to the land in dispute.
The evidence tends to prove that immediately after the order of the county court vacating Tracy avenue was made, defendants took possession of the land in issue, fenced it and have continued to hold the actual possession. There was also evidence tending to prove that defendants had not held possession for ten years before the suit was commenced. It is not disputed that defendants occupied the land by buildings when the suit was commenced, and that plaintiff's access to the street was thereby cut off.
The question of defendants' right to a verdict by reason of their adverse possession of the premises was submitted to the jury upon instructions to which no objection is now made.
Defendants asked an instruction to the effect that upon the pleadings and evidence plaintiff could not recover. This the court refused.
The court gave a number of instructions asked by defendants, upon which the case was submitted to the jury, whose verdict was for plaintiff.
A motion for a new trial, assigning as grounds therefor the ruling of the court in giving and refusing instructions, was filed by defendants. This motion was sustained, upon the ground as stated by the court, that "plaintiff had not shown any right to recover."
From the order granting a new trial plaintiff appealed.
According to the opinion of the court, necessarily implied from its ruling in granting a new trial, the instruction in the nature of a demurrer to the evidence should have been given. The question then is whether under the pleadings and evidence plaintiff established a right upon which he might recover.
I. It is contended by defendants in the first place that ejectment will not lie as a remedy to the owner of land abutting upon a public street for special injury caused by the permanent obstruction by a third person of the surface of the street adjacent to his property.
We find no case in this state in which the question as thus presented has been directly passed upon, and the decisions in the courts of other states are not in entire harmony. It is, however, well settled in this state that such an owner has rights to a highway peculiar to himself, and which are not possessed by the public generally, and for a violation of which he may maintain an action notwithstanding the wrong done also affects the public. Cummings v. St. Louis, 90 Mo. 259, 2 S.W. 130; Gaus, etc., Co. v. Railroad, 113 Mo. 308; Rude v. St. Louis, 93 Mo. 408, 6 S.W. 257.
One of the private rights of an abutting owner is that of free access to his premises from the street. Dillon says: "A person owning or in...
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