Becker v. City of St. Charles, 37 Mo. 13

Becker v. City of St. Charles

37 Mo. 13 | Mo. | 1865

Lovelace, Judge,

delivered the opinion of the court.

This action was commenced for the purpose of obtaining an *17injunction against the defendants’ opening a street through the plaintiff’s enclosure. The temporary injunction was granted in the vacation of the Circuit Court of St. Charles county, and, at the regular term of the court after the defendants had answered and moved to dissolve, the injunction was made perpetual; to reverse which, the case is brought here by appeal.

The evidence shows that the whole property was originally owned by one Isaac A. Dick, who, in 1857, conveyed to Andrew King, as trustee to secure the payment of a debt due Samuel B. Smith, all that portion “ lying west of Eighth street, to be hereafter opened.” On the 19th day of May, 1863, the trustee sold a portion of the land thus conveyed to satisfy the trust. Prior to this sale, Dick had the land marked off into lots, and the street in question was laid down on the plat of the land thus marked off and called “ Eighth street.” On the day of sale, Dick handed this plat to King, the trustee, and requested to have the land sold in accordance with the same, which the trustee accordingly did. After the sale, Dick refused to acknowledge and file the plat, as required by statutes; but King, the trustee, did acknowledge and file the same on the 3d day of May, 1863. It also appeared that Dick had made several other deeds to other persons calling for Eighth street as a boundary. It was not contended, nor did the evidence show, that the street had ever been opened or used by the city.

Upon these facts, the city claimed that the land covered by the proposed Eighth street was dedicated to the public, and were taking measures to have the same opened when the plaintiff interposed his injunction.

It is not contended that the plat filed by King amounts to a dedication, under the statutes, of the streets and alleys marked on said plat, the plat not having been filed in accordance with the statutes; but it is contended that the acts of Dick in making the plat, in having the land sold in accordance with the plat, and in calling for Eighth street as a boundary in other deeds made by him, constituted a dedica*18tion at common law. Two things are necessary to constitute a dedication at common law of private property to public use: first, there must be a plain and unequivocal intention on the part of the owner to appropriate the property for public use; and secondly, there must be an acceptance, by. user or otherwise, on the part of the public. The doctrine, says Judge Scott (Rector v. Hartt, 8 Mo. 448), seems well settled in America, that an owner of land may without deed or writing dedicate it to public uses. No particular form or ceremony is necessary in the dedication; all that is required is the assent of the owner of the land,-and the fact of its being used for the public purposes intended by the appropriation. So it has been held that when the owner of land in a city sells the land as building lots, bounding them by streets of a specified width, as laid down on a map, but not actually opened, the purchasers acquire a legal right as against the grantor to have the streets opened to the width delineated in the map, and the land thus included in the street will be dedicated to public use. (Matter of Lewis st., 2 Wend. 475; Matter of 13th st., 19 Wend. 130.)

In this case, it would seem that the intention of Dick to appropriate the land in question for a street is sufficiently manifest to enable the purchasers to have it opened according to the rule laid down in the cases above cited ; but can the City of St. Charles, against the will of these purchasers, have the street opened? The city was no party to any of the deeds made by Dick, in which he calls for this street as a boundary. The street was never opened and consequently never used by the public. If the intention to dedicate to the public be sufficiently manifest, still there is not a solitary act on the part of the public indicating an acceptance. In a dedication under the statute no acceptance on the part of the public need be proved, because the dedication itself vests in the public the fee to the property; but in the mere dedication of an easement in property an acceptance ought 'to be proven, for however clear may be the owner’s intention to dedicate, still, if the public fail to accept and use the property *19for the purposes for which it was appropriated, no title will pass. It is only the easement or right to use the property, in a manner expressed or implied in the act of dedication, that is intended to be given to the public, the owner retaining the fee in himself; and whenever that use is relinquished or lost, the owner again becomes revested with as absolute and exclusive dominion over the property as he possessed previous to the dedication. (Ang. on Highw., § 132.) We think there was no sufficient acceptance to vest the property in the City of St. Charles.

•But it is contended that Dick and the plaintiffs claiming under him are estopped from denying the dedication and acceptance by virtue of the various deeds made by Dick calling for Eighth street as a boundary. It is not contended that there is an estoppel in the ordinary sense that a party is estopped from denying what he has solemnly disclosed to be the fact by deed; but it is claimed that this is an estoppel in pais. The doctrine of estoppel in pais, so far as it is applicable to real estate, vests upon the equitable principle that the owner of land who induces or.suffers another to acquire an interest in, or expend money upon, such land under an erroneously supposed right so to do, shall thereby be precluded from denying the existence of such supposed right. (Ang. on Highw., § 156.)

And this doctrine, applied to streets or highways, would simply mean, that where an owner of land had sold the land as bounded by a street, he would be estopped as against the purchasers from denying the existence of the street.

“But the public,” says the authority above referred to, “ acquires its right by the acceptance of a voluntary donation, and holds it against the/(owner, not because he is precluded by any equitable principle from asserting his title, but because he has no title which is not consistent with the., public use. If this plaintiff was seeking to have this street opened as against Dick, it would seem that Dick would be estopped from denying that Eighth street was a public street, because he might justly say that it was upon the faith of *20Dick’s representations that Eighth street was a public street that he purchased the property ; but this defenee, which the law provides for his benefit and to protect his rights, ought not to be set up to prejudice them.

The judgment is affirmed.

The other judges concur.