Whyte v. City of St. Louis

• Decision Date: 05 December 1899
• Citation: 54 S.W. 478,153 Mo. 80
• Parties: WHYTE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

54 S.W. 478

153 Mo. 80

WHYTE v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

December 5, 1899.

ACCRETION — DEDICATION — ADVERSE POSSESSION — DEEDS — EFFECT.

1. One whose land fronts on a river is entitled to the accretion, though produced by dikes placed in the river by a city, or by other artificial means.

2. There is no dedication to public use of a street and wharf by reason of a partition proceeding, in which land is divided by commissioners into lots and streets, it being expressly stated in their report, and shown by the plat, made part of their report, that the street and wharf are open for the sole and special use and benefit of the owners of the several lots fronting thereon, and are not dedicated or set apart as public highways or for public use.

3. Title to a wharf by adverse possession cannot be shown in a city by ordinance passed by it and contracts for work in the river, for, though these may be acts of ownership, they do not constitute possession.

4. In partition proceedings a street and wharf were reserved for the sole and exclusive use of owners of lots abutting thereon. Afterwards the owner of the lots conveyed them by deed, which described them as a tract fronting on the west line of the wharf, but containing a reservation of any interest which such owner had in the property claimed by the city as a wharf, and also the right to claim damages against the city. Said deed also referred to other deeds, which fixed the wharf as a boundary. After the death of such owner's husband, she gave a quitclaim to the same grantee of the same premises by the same description, without any reservation. Held, that while, by the first deed, there was no dedication of the wharf, there was a common-law dedication by the second deed, which inured to the public as well as to the grantee.

In banc. Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Victoria D. Whyte against the city of St. Louis. From the judgment, both parties appeal. Reversed.

Leverett Bell, for plaintiff. W. C. Marshall, for defendant.

BURGESS, J.

This is ejectment to recover possession of a small tract of land in the city of St. Louis, described as follows: "That parcel of land situate in the city of St. Louis, and state of Missouri, in Duchouquette's addition thereto, lying contiguous to the Mississippi river, and opposite city block 870 of said city, containing three hundred and ninety-eight feet and two inches along the Mississippi river, and running back therefrom three hundred and seven feet, bounded north by land opposite city block 869, east by the Mississippi river at low-water mark, and west by said city block 870." The suit was instituted on the 17th day of September, 1880, in the name of Joseph T. Tatum, trustee of Virginia Lynch, and Virginia Lynch, plaintiffs, against the city of St. Louis, defendant. Subsequently to the commencement of the action, the interest of Mrs. Lynch was assigned to the present plaintiff, Victoria D. Whyte, who was substituted as plaintiff. The case was before this court on a former occasion under the style of "Tatum v. City of St. Louis" (125 Mo. 647, 28 S. W. 1002), when the judgment was reversed, and the cause remanded. After the cause was remanded, defendant filed an amended answer, in which it denied all allegations in the petition, pleaded the 10-year statute of limitations, alleged that it had been in the open, notorious, adverse, continuous, and exclusive possession of the land since 1851, claiming to be the owner thereof, and averring that plaintiff, and those under whom she claims title, were estopped by their acts and admissions from claiming the land. The facts disclosed upon the last trial, except as before stated, were not materially different from the first, except there was some evidence tending to sustain the defense of estoppel, and are fully stated in that case. The case was tried by the court, a jury being waived. At the request of plaintiff, the court, over the objection and exception of defendant, declared the law to be as follows: "(1) If the court shall find and believe from the evidence that the property sued for is west of the center thread of the slough that once existed between Duncan's Island and the Missouri shore, provided that the court find that such slough existed, and that the same was formed by gradual accretions caused by natural or artificial means, against lot 4 of the Brazeau tract, then said property is a part of said lot 4. (2) If the court shall find and believe from the evidence that no filling was done in the river in front of lot 4 by the Iron Mountain Railroad Company, then the operation of said company in no manner affects the issues in this case." "(5) If the court shall find and believe from the evidence that the Sectional Dock Company did not occupy any part of the property sued for prior to 1876, then the plaintiff's action is not barred by limitation. (6) If the court shall find and believe from the evidence that in the partition proceedings of 1855, in evidence, between Mr. and Mrs. Lynch and Victoria Duchouquette, it is expressly stated in the commissioners' report, and on the plat, that Front street and the wharf are not dedicated nor set apart as public highways, or for public use, but are open for the sole and especial use and benefit of the owners of the several lots fronting thereon, then this constituted no transfer of the interests of the parties to said partition in said property to the public. (7) The court declares the law to be that, under the conveyances in evidence on the part of the plaintiff, if the court believe the same to be genuine, and the proof of heirships, if the court believe the same to be true, the title to the shore lands to which it is claimed the premises sued for are an accretion, was fully vested in those under whom plaintiff claims title. (8) The court declares the law to be that the deeds read in evidence by the defendant, relating to property in block 870, do not constitute, nor do any of them, a defense of this action. (9) The court declares the law to be that, under the evidence in this case, the plaintiff's action is not barred by limitation. (10) The court declares the law to be that the title, under the Brazeau concession, extended to the Mississippi river on the east, and covered all the land and the accretions thereto to the water's edge, and the city could not, nor could any person, by filling up the river front, or by building dikes in the river, deprive the plaintiff or her predecessors in the title of their riparian rights." And over the objection and exception of plaintiff the court refused the following instructions: "(3) If the court shall find and believe from the evidence that the defendant has not used the property in front of block 870 as a wharf, and has not built a wharf there, then it took nothing under the so-called `license' of 1851, signed by Mrs. Lynch and others, in evidence in this case. (4) If the court shall find and believe from the evidence that a bridge company occupied the premises sued for from 1871 to 1874, as tenant of Mrs. Lynch, and paid rent therefor, and used the same for storing stones, then this operated as a revocation of the so-called `license' of 1851, signed by Mrs. Lynch and others, in evidence in this case." "(11) The court declares the...