119 Mo. 189 | Mo. | 1893
In this action, the plaintiff, who is a minor suing by his next friend, seeks to recover damages for injuries received by him from the falling of a large gate belonging to and on the premises of the defendant Boeckeler, which were at the time leased to the defendant, the Hill-Settle Tobacco Company, alleging in his petition that on the thirtieth of December, 1888, he was struck by the heavy post of said falling gate while standing in a public alley, contiguous to said premises, in city block 42, in the city of St. Louis, and which post he alleges was then, and for a long time prior thereto had been, in a decayed and dangerous condition; of which condition the said Boeckeler had knowledge when he leased the premises to the said Hill-Settle Tobacco Company. The defendants answered separately, denying the allegations of the petition and pleading contributory negligence. In the trial court, the plaintiff obtained a verdict and judgment against the said defendants for $8,500, and they appealed.
It appears from the evidence that city block number 42 is bounded on the north by Cedar street, on the south by Gratiot street, on the' east by First street and on the west by Second street; that in the year 1886, Richard W. Ulrice died seised of all of said block
It appears from the evidence that for some years prior to the year 1857, there existed an open space about twenty feet wide between the five lots belonging to different individuals in the northwest corner of the block, and the building of Mr. Ulriee situate in the northwest corner of the east half of said block, extending south into the block from Cedar street about one hundred and eighteen feet to the south line of Eberlee’s lot extended east, used generally- by all persons desirous of getting into the rear of the premises of the owners of these five lots or into the premises of Mr. Ulriee, who at that time was rising the remaining
Extending the west line of this alley twenty-six feet south, it strikes the north wall of the stone warehouse, which extends ten or twelve feet east* of that extended line to the corner against which the gate shut; ten or twelve feet east of this corner (the width of the gate) stood the post which fell on the plaintiff. The evidence for the plaintiff tended to show that the plaintiff, who, with several other boys, had been playing “catcher” in and about this gateway and the surrounding premises, was standing near the gate a little north of west of the post when the gate fell, and the post struck him, which would place him when struck, .within the lines a. b. 0. c. e. d. a. on the diagram, a cul-de-sac at the mouth of the alley in the form of an irregular parallelogram, twenty-six by about thirty feet, which counsel for the plaintiff claims was a public alley and which counsel for the defendants claim was the private property of defendant Ulrice leased to the defendant tobacco company, and therefore that the plaintiff when struck, was not on a public alley, but a trespasser upon the private property of the defendant.
This cul-de-sac was within the boundaries of the premises leased by Boeekeler to the tobacco company on the thirtieth of December, 1888, and unquestionably was the private property of the defendants at the time
It can be safely said that prior to the year 1879, when Mr. Ulrice leased the eastern portion of the block to the Cotton Seed Oil Company, there is no evidence in the record tending to prove a dedication of this piece of ground to the public for an alley. On making this lease, the oil company was required to erect a fence from the mouth of the paved alley to Mulberry or Gratiot street, on a line with the east line of the paved alley, to mark the boundary of the premises leased, which was accordingly so done. As originally built, this fence was probably on the line D. d. 0., but afterwards for convenience, an offset was made in the fence between d. and C. and a gate put in to afford access from the oil company’s premises to the paved alley. It is impossible from the evidence to delineate that portion of the fence accurately as it existed at the time of the accident; its general direction is indicated by the line D. e. c. It seems that prior to the .time this fence was built, up to the end of the east line of the paved alley, some sort of a barrier — a fence or gate— was maintained at the mouth of the alley by Mr. Ulrice, which was sometimes up and sometimes down, as was but natural from its situation and the use of the property for manufacturing purposes, first in connection with a distillery and afterwards with a flouring
After the lease to the oil company, and after this fence was built, the premises west of the alley, after-wards leased to' the defendant tobacco company, were leased (say in 1880 or 1881) to J. C. Sehotten & Co., or at least so much thereof as is marked on the‘diagram as “stone warehouse” and “stable” adjoining the warehouse on the north. At that time whatever barrier or obstruction had theretofore been at any time at the mouth of the alley, was either broken, gone or was thereafter taken away, and the gate in question was erected by Sehotten & Co. between the northeast corner of the warehouse and the fence as hereinbefore described and shown upon the diagram. After the building of this fence and the erection of this gate, a person coming to the south end of the paved alley, met with no permanent obstruction, and saw no fixed indications of private occupancy until he had gone twenty-six feet south to the line of the stone warehouse and the gate erected by Sehotten, and the only difference between the appearance of the open space within which plaintiff was injured and the alley proper, was that the former was not paved and was wider than the latter. Sehotten & Co. continued in the occupancy of these premises until within four or five months of the date at which they were leased to the tobacco company. _ There is some evidence that he used a portion of this cul-desac in the rear of the stable for storing hay and kept his wagons there, but from 1881, it was practically
During all this time, this cul-de-sac was assessed and taxed as the private property of Mr. TTlrice by the city, and as such, leased by him and his trustee to tenants. Is there any substantial evidence in the foregoing facts of a common law dedication thereof to the public use?
The question whether land has been dedicated to public use is primarily one of intent. In the language of Philips, C. in Landis v. Hamilton, (77 Mo. 554) ‘‘In a country like ours, where landed estates are allodial, the law is justifiably jealous of the methods by which such estates are taken away from the private citizen and put into the control of an intangible public, state or municipality. This feeling or thought finds its best expression and safeguard in that provision of our organic laws which forbids the taking of private property, even for public use, without just compensation to the owner. In a case, therefore, where, without judicial proceeding or compensation, or solemn form of conveyance, it is sought to establish in pais a divestiture of the citizen’s landed property in favor of the public, the proof ought to be so cogent, persuasive and full as to leave no reasonable doubt of the existence of the owner’s intent and consent. Irwin v. Dixion, 9 How. 30, 31; Brink v. Collier, 56 Mo. 164, 165. The conduct and acts relied on to establish the intent of the owner should be ‘inconsistent and irreconcilable with any construction except such consent.’ Irwin v. Dixion, supra, and authorities cited.” And this position
In order to constitute a valid dedication by implir cation of law, not only must the intention of the owner to dedicate be thus shown but acceptance by the public ' must also satisfactorily appear. It is not necessary however, that the intention of the owner should be made to appear by express declarations, or acceptance by the public by any direct or formal action of the municipal authorities. Both may be established by long user by the public of the land as a public highway. Dillon on Mun. Corp., supra, sec. 637, 642; 5 Am. and Eng. Encyclopedia of Law, p. 402 b, p. 414 b; Kemper v. Collins, 97 Mo. 644; Brinck v. Collier, supra.
In the last case it was said: “To constitute a valid . dedication of land to the public, there must be a clear intention on the part of the owner to dedicate, which may be established in various modes, some of which are provided by • statute, and others by- such acts or declarations in.pais as are satisfactory evidence of such design, and there must be an acceptance of such dedication by the public, either by user for length of time, more or less, according to circumstances, or by its adoption by the public authorities.”
Both these elements of a valid common law dedication of land to public use (intent to dedicate on Ihe part of the owner, and acceptance by the public) may be established by showing a continuous adverse occupancy and use of the land by the public as a highway, acquiesced in by the owner for the period of ten years. State v. Young, 27 Mo. 259; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; State v. Proctor, 90 Mo. 334; Price v. Town of Breckenridge, 92 Mo. 378. And where the intent of the owner to dedicate is clearly shown aliunde, acceptance may be established by such
This action was commenced at the June term, 1889, of the circuit court of St. Louis city. Prior to the time Schotten erected the gate in question, which could not from the evidence have been earlier than in 1880, there is no evidence tending to show either a continuous adverse user by the public of this space at the mouth of the paved alley, or any other portion of Ulrice’s premises other than the paved alley as a public highway, nor during that period was any act or declaration of the owner shown tending to prove an intent upon his part to dedicate this cul-de-sac or any other portion of his premises to the public for a highway; and whatever use may have been made thereof, after the gate was erected, it had not, under any circumstances, at the commencement of this suit, continued the requisite length of time, of itself, to furnish evidence of the intent of the owner to make such a dedication or obviate the necessity of showing such intent. Waiving, then, further inquiry as to whether there was evidence tending to show such a use of the cul-de-sac after the gate was erected as would tend to show an acceptance, contradicted as it was by the action of the city authorities pi levying and collecting taxes thereon, was there, independent of such use, evidence of any unequivocal act or declaration of Ulrice tending to show an intent upon his part to make a dedication of this part of his premises to public .use? The only declarations of the owner shown in the evidence in regard to this property
The only acts done were the acts of his tenant Schotten in putting up this gate at the corner of Eberlee’slot, instead of at the mouth of the alley, and of his tenant, the oil company, in making an offset in]the fence and putting in a gate for its use, thereby creating this cul-de-sac outside the inclosure of each, and between such inclosures and the mouth of the alley, affording each convenient access to the alley and thence to Cedar street; and to the public a means of access to the property occupied by them, and incidentally an open space, in which teams might be turned for any purpose; and to such a mixed use only does the evidence tend to show this cul-de-sac was subjected. In these facts no adverse use under claim of right in the public can be found; no substantial evidence tending to prove an intent upon the part of the owner to dedicate his property to such an use. The plaintiff’s right of recovery was predicated in his pleadings, upon the fact alleged that he was injured while in a public highway, and upon this theory his case was tried and presented to the. jury.
As there was no substantial evidence tending to show that the place where he was injured had ever been dedicated by the conceded owner, in fact, or by user, for a highway, the defendant’s demurrer to the evidence ought to have been sustained, and for the error of the court in refusing a nonsuit, the judgment will be reversed and the cause remanded.