77 Mo. App. 329 | Mo. Ct. App. | 1895
This action is by the owner and tenants of a lot and building to enjoin the tenants of a contiguous building from adding a bay window to the same on four feet of ground in front of said building. The equities alleged are that the said four feet of ground whereon the bay window is about to be erected were dedicated to the public as a part of the pavement of the public square of Springfield, Missouri, by the county court when the building itself was constructed, and that the present use of said four feet of ground attempted by defendants is a public nuisance inflicting special injuries on the property rights of the plaintiffs. The defense is non-dedication and ownership of the four feet of ground in question by the landlords of defendants under mesne conveyances running back to a grant from the county court. On the trial plaintiff’s petition was dismissed and damages assessed at $150, from which decree this appeal is taken.
It appears from the evidence that in 1885 the county court of Greene county owned the lot whereon the building occupied by defendants is situated and erected said building at the same time that plaintiff was erecting one on her adjacent lot; that upon the request of plaintiff the county court set its building back four feet from the front boundary of its lot and plaintiff placed hers back ten feet from her front line, thus making an arcade entrance to the public square of the town twenty-two feet wide connecting the square with Olive street and with an opening on the square in a diagonal line about thirty-two feet wide; that the portion of the lot thus left in front of the county building
It is claimed by appellants under the foregoing facts that they are entitled to an injunction on the grounds alleged in their petition. There are two methods of dedication; one statutory, the other • as it existed at common law. The present case does not make out a statutory dedication. Such a dedication is not accomplished, as claimed by the learned counsel for appellants, by reason of the fact that the county court left bare four feet on the front of its lot when it erected the building in question for county purposes under the power given by the statute. R. S. 1889, sec. 3123. Such act simply imported that the county court thereby used so much of the lot as was covered by the building for that purpose. It did not evince an intention to renounce future ownership or control of the portion left unused. To have effected such a purpose it was indispensable that the county court should have adopted the mode prescribed by law. R. S. 1889, sec. 7309; Reid v. Board of Education, 73 Mo. loc. cit. 304.
The fact of the omission to build on the four feet of frontage when the edifice was constructed is not of itself evidentiary of a dedication, and if it could be so construed, it could not become effective as such in the absence of proof of the further essential fact of acceptance thereof by the public. Becker v. St. Louis, 37 Mo. 13. As to that the evidence is undisputed that the strip in controversy was used by the present and former tenants for the purposes of displaying merchandise kept in the building; that taxes were regularly paid thereon, and that at the time of the various sales of the lot the measurements of each deed called for this portion, and it was actually pointed out to the vendees as an integral part of the land acquired by them under their respective deeds.
We have not overlooked the argument of appellants that the lot and building occupied by defendants was held by the county court for public purposes and therefore not the subject of sale. That the county court, within the limits' prescribed by statute, can sell and convey public property held by it, is clear. R. S.