Brown v. City of Carthage

128 Mo. 10 | Mo. | 1895

Brace, P. J. —

This is a proceeding by injunction in the Jasper circuit court to restrain the city of Carthage from appropriating for street purposes a strip of land about nine feet in width, within the enclosure of plaintiff on his premises fronting on Case street in “Parson and Case’s addition to the city of Carthage.” A temporary injunction was granted, which on the hearing was dissolved and judgment rendered for the defendants, from which the plaintiff appeals.

Case street, “eighty feet wide and eighty rods long,” was dedicated to public use as a street by the proprietors, by a plat of said addition, duly acknowledged on the first, and recorded on the third day of January, 1868, in which, the proprietors reserved the right to appropriate to their own use “the trees and rocks” on the streets and alleys dedicated. The plat and the description thereon show the location, length and width of the streets and alleys, size of lots and location of the addition on the southwest quarter of section .4, township 28, range 31, with reference to the lines of that sectional subdivision according to government survey. It does not purport to have been made from an actual survey of the ground, and there is no evidence tending to show that the plat was made from any such survey. Consequently, there were no monuments by which the location of the corners and lines of the lots and streets could be located. The only way of ascertaining their location on the ground was by courses and distances from the government lines.

It appears from the evidence that the addition was covered with brush and timber, and that in the spring, after the dedication, the proprietors caused the brush and timber to be cut away in the streets,, and that at that time measurements were made by their agents by a chain, without other instruments, for the purpose of ascertaining the lines of the streets and the corners of the lots; and that stakes were driven along the lines of Case street, as ascertained by that measurement; that afterward lots were sold and inclosed upon each side of said street.

In the fall of 1873, the plaintiff became the purchaser of seven lots composing the north half block between Walnut and Oak fronting on the west side of Case street. He testifies that: “Immediately after my purchase I took steps to learn where my corners were. I secured the services of the then county surveyor, Mr. Elliott, and he came and located the corners of that half block for me. He located the northeast corner of the lot fronting on Oak street, as well as the other three corners of the tract. That corner I have always thought was correct, but before I got my fence down the stakes had been pulled up. * * * At the time Mr. Elliot located the corners he drove stakes at all four comers.” Plaintiff fenced his premises in 1875.

There was also evidence tending to show that the fence was on the general line of the fences, south of his premises, previously built on the west side of Case street, and that some of these fences were on the line of the stakes set in the spring of 1868 as aforesaid.

In 1892 the city authorities1 caused an accurate survey to be made of the streets and alleys in the addition according to the. recorded plat, which developed the fact that the fences on the west side of Case street, beginning at the corner of the south half block fronting on that street, ran north at an angle slightly variant from the true one, diverging east from the true line almost imperceptibly at first, but increasing in distance from the true line, until, when opposite the plaintiff’s premises, the divergence amounted to between nine and ten feet; and thus it was, defendant had fenced in a strip of about nine feet within the lines of the street when the city was proceeding to grade and improve the street in accordance with such survey, and hence this proceeding to restrain the city authorities from so doing.

I. The evidence tending to prove the strip of ground in controversy was within the lines of defendant’s premises, as staked at any time by anybody, is not at all satisfactory. But, even if it could be conceded that it was within those lines according to the stakes set when the street was cut out, the plaintiff’s claim can not be maintained. Those stakes were not monuments located by a survey, by which the true lines of the lots and streets dedicated were to be ascertained. The only monuments given by the plat, from which the true lines of the streets and alleys dedicated were to be located, were the monuments fixed by government survey, from the lines of which the lines of the recorded plat were drawn. There is no place in the facts of this case for the application of the principle that fixed monments, although wrong, are to govern the courses and distances.

II. We do not think that the reservation, in the plat, of the ‘ ‘trees and rocks” on the surface of the streets and alleys impairs the force and effect of the plat as an absolute statutory dedication for the purpose contemplated by the statute, and in this state, as in many others, a valid statutory dedication operates to vest the fee and dispenses with the necessity of an acceptance on the part of the public. R. S. 1865, sec. 8, chap. 44; R. S. 1889, sec. 7313; Elliott on Roads and Streets, 87; Buschmann v. St. Louis, 121 Mo. 523; California v. Howard, 78 Mo. 88; Reid v. Board of Education, 73 Mo. 295. After such a dedication, neither the dedicators, nor anyone claiming uner them could change the boundaries of the streets and alleys.

There can be no doubt on the evidence in this ease that the west line of Case street, as dedicated by the plat of 1868, was correctly defined by the survey of the city engineer, according to which, the strip in controversy was within the boundaries of the street. The possession of that strip by the plaintiff from 1875 to 1892 e.onferred no right or title to it as against the right of the city to subject it to the purposes for which it was dedicated. R. S. 1889, sec. 6772. And we fail to find in any of the facts disclosed by the evidence, any ground upon which the city could be estopped in the latter year, when for the first time it took positive and affirmative action in that direction, from subjecting the whole of Case street, as dedicated, including the strip in controversy, to the uses and purposes for which it

was dedicated.

The judgment of the circuit court is affirmed.

All concur.