Callaway County v. Nolley

| Mo. | Jan 15, 1861

Scott, Judge,

delivered the opinion of the court.

This cause in the court below was made to turn on the statute of limitations. It was maintained for the plaintiff that inasmuch as the dedication made by Irvine O. Hockaday was for the public use, a title to the lot in controversy could not be required under the statute of limitations by adverse possession. Admitting that by the plat of the addition made to the town of Fulton, the lot in question was intended for a market, it does not follow that a dedication for such a purpose was of such a character that a title to the lot dedicated could not be gained under the statute of limitations. The dedication it seems was made on the 4th of May, 1835. As the laws contained in the code of 1835, with few exceptions, of which the act concerning plats of towns and villages were not one, did not go into effect until the 1st December, 1835, the act concerning towns in the code of 1825 will govern in this case. (Roberts v. Stoner, 18 Mo. 481" court="Mo." date_filed="1853-10-15" href="https://app.midpage.ai/document/roberts-v-stoner-7999150?utm_source=webapp" opinion_id="7999150">18 Mo. 481.) The third section of the act concerning plats of towns and villages, (R. C. 1825, p. 762,) provides that “all maps and plats of towns and villages, and additions to towns or villages, which shall be made, acknowledged, certified and deposited with the recorder as aforesaid, shall be deemed a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended to be for public uses, in tlie county in which such town, village or addition is situate, in trust and for the uses therein named, expressed or intended, and for no other use or purpose whatever.”

Under this act, if the lot was intended for a market under the instrument of dedication, the legal title to it vested in Callaway county. The statute in using the words “ public uses,” in reference to the dedication and donation made for the benefit of the inhabitants of a town or village did not thereby design to extend the use of the property to others than the inhabitants. In saying the property intended “ for public uses,” the legislature did not contemplate that the use of such property should be for the people of the State. It was for public use as contra-distinguished from the use of property belonging to the individual inhabitants of the town. Here then was a lot whose legal title was vested in Callaway county, in trust for the inhabitants of the town of Fulton. Callaway county was as competent twenty years ago to bring an action as it was at the time of the institution of this suit. In fact it is nothing more than a body politic, acting as trustee for the inhabitants of the town of Fulton. It is subject to the statute of limitations, as was held in the case of the County of St. Charles v. Powell, 22 Mo. 525" court="Mo." date_filed="1856-03-15" href="https://app.midpage.ai/document/county-of-st-charles-v-powell-7999783?utm_source=webapp" opinion_id="7999783">22 Mo. 525. Property held by individuals or bodies politic in trust is as much subject to the statute of limitations as that owned by individuals. Since, 1849, the ancient maxim nullum tempus occurrit regí has been abolished in this state, and now the state herself is bound by the statute of limitations in the same manner as individuals. So in the case of Funkhouser v. Langkoff, 26 Mo. 453" court="Mo." date_filed="1858-03-15" href="https://app.midpage.ai/document/funkhouser-v-langkopf-8000273?utm_source=webapp" opinion_id="8000273">26 Mo. 453, it was held that the right to her commons held by the city of Carondelet for the benefit of the inhabitants thereof, would be barred by an adverse possession of twenty years.

The cases cited by the defendant’s counsel seem opposed to these views. But there is a conflict of opinion on the subject. Angelí, in his work on highways, says, that the doctrine of the earlier cases that there can be no loss of a public right by non-user, has to some extent been departed from in more modern decisions. (310.) In Commissioners v. Taylor, certain lands were conveyed for streets, but never used as such, but, on the other hand, enclosed and used as a farm for more than forty years ; and it was held that the doctrine of non-user would apply, which would forfeit a corporate right as well as misuser. (2 Bay, 282.) The same principle has been established by the supreme court of Ohio, in the case of Fox v. Hart, 11 Ohio, 414; and in Kentucky, in the case of Rowan’s Executors v. Portland, 8 Ben. Mon. 259. In this latter case it would seem that the fee of the land was vested in town trustees for the public use. Judge Marshall, in delivering the opinion of the court, said, “ that the public right as growing out of the dedication in this case, was subject to be defeated and divested by adverse possession and claim for individual right for twenty years, admits, as we think, of no doubt. The dedication was not to the commonwealth as a corporate being, and vested no title or interest in her. The maxim nullum tempus occurrit regí, is therefore inapplicable. There is nothing to exempt the right which really vested in the town and its citizens to be upheld by them for the public, from the operation of the statute of limitations, or from the presumptions arising from adverse claim and possession as they would apply in ordinary cases of private right or public easements.” So in Vermont, it was held that the inclosure and occupation of land within the limits of a highway for twenty years under a claim of right made a title by prescription to the land so enclosed and occupied as against the public. (22 Vt. 480" court="Vt." date_filed="1850-03-15" href="https://app.midpage.ai/document/knight-v-heaton-6574369?utm_source=webapp" opinion_id="6574369">22 Verm. 480, Angell, 311.) These views correspond with the opinions heretofore entertained by this court, and we are unwilling to depart from them as now the state herself by our law is subject to the statute of-limitations.

The construction put upon the existing statute of limitations as to real actions is, that where ten years have elapsed from the taking effect of the act, the action is barred, although it first accrued under some other act of limitations, which gave a longer period within which to bring it. This construction of the act will give the trustees a title under their own adverse possession.

Judgment affirmed.

The other judges concur.