Wright v. City of Doniphan

• Decision Date: 27 October 1902
• Citation: 70 S.W. 146,169 Mo. 601
• Parties: WRIGHT v. CITY OF DONIPHAN.
• Court: Missouri Supreme Court

70 S.W. 146

169 Mo. 601

WRIGHT v. CITY OF DONIPHAN.

Supreme Court of Missouri, Division No. 2.

October 27, 1902.

HIGHWAYS — ESTABLISHMENT — WIDTH — REDUCTION — RECOVERY — ESTOPPEL.

1. Rev. St. 1855, c. 137, § 28, in force at the time of the laying out of a state road, required all such roads to be 60 feet wide. Act Feb. 17, 1857 (Laws 1856-57, p. 843), provided for the establishment of the road in question, and designated commissioners to mark out the same; and by Act Jan. 5, 1860 (Laws 1859-60, p. 587), the act of the commissioners was ratified, and the several county courts along the route were directed to cause the road to be opened according to the location and survey. At the time plaintiff's grantor laid out an addition to a town through which the road ran, abutting on the same, and caused the surveyor to survey the addition, during which he suggested to the owner of land on the opposite side of the road that they reduce the width of the road to 40 feet, each party appropriating 10 feet. This the owner declined, whereupon the plat of the addition was executed, grantor appropriating the entire 20 feet. Held, that the strip so taken was a portion of a public state road.

2. Where an abutting owner had reduced the width of a public state road, and appropriated a part thereof, and in an action to recover the same there was no evidence that the legislature ever reduced the width of the road, nor that the county court ever vacated the part so taken, it could not be held that the road was ever lawfully reduced from its original width.

3. Where plaintiff's grantor, at the time of platting a city addition, reduced the width of a state road from 60 to 40 feet, and appropriated the strip so cut off without authority, and at the time of such appropriation plaintiff was a resident of the town and owned a lot in the addition, and had knowledge of the appropriation, the facts that the plaintiff paid taxes on the strip, erected a hotel thereon (which was subsequently destroyed), and occupied it for a long period of time, did not estop the town from subsequently recovering the strip so appropriated.

Appeal from circuit court, Ripley county; J. L. Fort, Judge.

Action by E. W. Wright against the city of Doniphan to recover a strip of land which defendant claims as a part of a public road. Judgment for plaintiff, and defendant appeals. Reversed.

The controversy in this case is between the city of Doniphan and the plaintiff, who claims a strip of land which the city insists is a part of one of its public streets. The questions which must be answered are three: First. Was the strip in question ever a portion of a public state road? Second. Was that road ever lawfully reduced from a width of sixty feet to one of forty feet? Third. Notwithstanding it shall appear that this strip was at one time included in the Pilot Knob and Doniphan state road, and notwithstanding said road has never been reduced in width by any act of the legislature or judgment of the county court or city council, is the city not estopped from claiming it as against plaintiff, who bought it of Daniel Lee, and built a hotel thereon, with the knowledge of the city and county officials, without official interference? The strip is alleged to be 131½ feet long and about 25 feet wide at the south end and 16 feet wide at the north end. Ouster was laid as of January 29, 1898. The answer admits the city's possession, and justifies on the ground that the strip is a portion of what was once the Pilot Knob and Doniphan state road, and by the incorporation of it into the city of Doniphan this strip became and continued to be a part of one of its highways or streets, to the control and possession of which it had a right. The reply asserts that, if it should appear that this was a part of a state road or street, the defendant is estopped, for the reason that it suffered plaintiff to take charge and possession of it, and build a large hotel on it, and defendant has taxed it since 1886 as plaintiff's property, and plaintiff has paid taxes so assessed to defendant city.

John M. Atkinson, for appellant. J. C. Sheppard, for respondent.

GANTT, J. (after stating the facts).

The plaintiff deraigns title through Daniel Lee. The S. W. ¼ of the N. W. ¼ of section 26, township 23, range 2 E., in Ripley county, was patented in 1837 to George Lee. By warranty deed, in 1853, George Lee conveyed to William Russell that portion of said 40 acres "lying east of lots 15, 16, 17, and 18 in the town of Doniphan." The patent and these deeds were duly recorded. On March 15, 1859, Russell and wife, by warranty deed, conveyed this last-mentioned tract to Lemuel Kittrell by the description, "that part to the east of the town of Doniphan joining lots 15, 16, 17, and 18, and south of Nicolas Byars' spring branch, and west of the main state road; containing one acre, more or less." Kittrell died testate, having devised this same tract to his wife, Lorena Kittrell. By her deed of October 5, 1866, Mrs. Kittrell conveyed by the same description this one acre to Fairchild, and Fairchild by the same description conveyed this acre, more or less, to Daniel A. Lee. In 1883 Daniel Lee platted and laid off an addition to the town of Doniphan on this acre tract, and included in it the strip of land now in controversy, and designated it as part of lots 1 and 2 of block 1 of Lee's addition. His action at that time is the origin of this litigation. When Lee took the surveyor, Capt. Naylor, on the ground, to make the survey for his addition, Mr. Thomas Mabrey, who owned the lands on one side of what was then generally known and recognized as the state road from Doniphan to Pilot Knob, was present. Capt. Naylor testified as follows: "Q. Now, what did Lee do about that 20 feet? Do you recollect? A. After we measured across, and had driven the corner, — Mabrey's corner, — Mabrey was standing there, and I started back, and Dan Lee came up and come between me and Mr. Mabrey. We were not over 6 or 7 feet apart, and he proposed to Mr. Mabrey to take one of the 10 feet of the 40, — one-half of it, — and he would take the other. Mabrey says to him, `No, we want the full 60-foot street here, and I will not take it.' Mr. Lee says, `Then, if you do not take it, I will take it myself.' Mr. Lee says to me, `Well, measure out to where the 40-foot street — leave a 40-foot street.' Q. Then when you made that plat you included these lots in his Lee's addition? A. Yes, sir. Q. You included that 20 feet in it? A. Yes, sir. Q. And staked it out as such, including that 20 feet? A. Yes, sir. Q. and Lee knew at that time that 20 feet did not belong to him? A. I don't know about that. Q. It wasn't covered by those two deeds, was it? A. I didn't see any other deeds at all. I was working for an individual then, and I was to survey any part that he should show me to survey and measure. I took the course of the west side of the street, then to Byars' bar, and it went north, 15 east. Q. Was Mr. Wright living in town at that time? A. Yes, sir. Q. Did he know about that survey being made? A. Yes, sir; he knew it." He testified further that after that this road never ran on this 20 feet until after plaintiff's hotel burned down, and the city took possession and graded it down. Thomas Mabrey testified that the state road at this point was 60 feet wide, as he understood from Kittrell, who was one of the commissioners who marked and viewed it. "It was recognized as a state road. Kittrell owned the land on both sides of it. He (Kittrell) recognized it as 60 feet wide. Kittrell had a hotel on lot 16 in the original town in 1859. I boarded with him." He testified further as follows: "Q. What, if any, conversation did you have with Mr. Lee relative to the reduction of this road to 40 feet, or attempted reduction of this road to 40 feet, or attempted reduction? A. We had a good deal of conversation about it. He was going to see the county court, and reduce it as it run through town. He said he didn't care how it was out of town. He wanted to reduce the street so as to take possession of the land. I opposed it. Q. It never was reduced before the county court, was it? A. I don't know about that. The records would show. He told me afterwards that the county court had reduced it, and he was kind enough to say that I might have 10 feet of the 20, and he take the other 10. I still opposed it, and told him we ought not to cut it down. I told him I didn't believe the county had the right to do it, and, if they had the right, we ought not to do it. We ought to have the road 60 feet wide, and I wouldn't take any part of it. He then employed Captain Naylor to do the surveying of the lots, and called me to give me 10 feet on my side and he take 10 feet on his. It was recognized by everybody around here as being the state road from Doniphan to Pilot Knob. The road had just been cut out from Pilot Knob to this place. Q. Mr. Wright at that time was a resident of this place, wasn't he? A. I don't know just when Mr. Wright came here. I think, at the time of laying off this lot, he was. Q. You know that Mr. Wright was a resident then? A. I think that he was a...