City of Hannibal v. Draper, 15 Mo. 634

City of Hannibal v. Draper

15 Mo. 634 | Mo. | 1852

Scott, J.5

delivered th-e opinion of the court.

This was an action in the nature of an ejectment, instituted by the appellant against the appellee, for the recovery of the possession of lots three and four, in block twenty-six, on the plat of the town of Hannibal. In consequence of adverse instructions, the plaintiff submitted to a non suit, and afterwards brought the cause to this court.

It appears that in the year 1836, Stephen Glascock filed in the office of the Recorder of Marion county, a duly acknowledged plat of the town of Hannibal. The town is laid off fronting the Mississippi river, and its locality can be identified by Bear Creek, which runs through ? part of the town, and mouths m the Mississippi river, very near its southern boundary. The plat is divided into blocks, streets and alleys, and the blocks, thirty-two in number, are subdivided into lots. The blocks are numbered, and so also are the lots of each block." On the margin-of the plat, the length of the front and the depth of each lot are stated, and also the width of the alleys. The width of the streets, respectively, is marked on each street. Amongst other memoranda on the map, is the following: “lots numbered 2, 3, 4 in block 26, is intended for church grounds.” The reservation of the public square and landing, is made by the declaration in writing, that particular lots are intended for that purpose. The lots intended for church grounds, and the public square, were crossed entirely with red lines very near each other. Across the public square, the-words “public square” are writ*638ten, and across the church grounds are written the words “church ground.” Since the year 1840, the lots in controversy have not been assessed to Glascock. The town did not improve very rapidly at first, but since I84O it has increased considerably in population. No use, as yet, has been made of the lots by the inhabitants of the city. Glascock, by a quit claim deed, aliened the lots in dispute to the defendant, who had previously inclosed them. The act for the incorporation of the city of Hannibal prescribes, that all the real property heretofore vested in the county of Marion, for the use of the inhabitants of said town, shall be vested in the corporation hereby created: Private Acts, 1845, p. 126. The answer to the petition denies that the plat conveyed to the county of Marion the lots in controversy, and also denies that the act of incorporation of 1845, transferred the title to the lots from Marion county to Hannibal city. It is not easy to determine the precise points on which the cause turned below, as, although many instructions were refused, none were given indicative of the views of the court. As, however, the parties went to trial on the answer, we will assume that it embodied the matters relied on as a defence.

The act of 1835, concerning plats of towns and villages, provides, sec. 1, that the proprietors of every town shall make an accurate map thereof particularly setting forth and describing all the parcels of ground reserved for public purposes, by their boundaries, course and extent; whether they be intended for avenues, streets, alleys or other public uses, and all lots intended for sale, by numbers, and their precise length and width. The 4th section enacts, that such plats shall be a sufficient conveyance to vest the fee of such parcels of land, as are therein expressed, named or intended for public uses within the county in which the town is situated, for the use of the inhabitants thereof. The 5th section of the act imposes on any proprietor who shall cause to be deposited with the Recorder, any map or plat which does not set forth and describe all parcels of ground which have been or shall he prom-, ised or set apart for public uses, a penalty double the value of the ground promised, or pretended to have been set apart for public uses, and not set forth on the map or plat.

Yerily we live in a brazen age. Draper claims the lots in controversy, under a quit claim detd. He of course is affected with notice, as he bought only such title as Glascock pretended to have. If he succeed, he will gain property by aiding in a violation of law committed by Glascock, which subjected him to a penalty equal to double its worth. It will not be contended, but that the map is evidence of some pretence to set apart these lots for church pnrposes, and if it fails to *639accomplish that end, then Glascock has been guilty of a violation of law, and out of that violation grows the right which Draper holds.— And thus a law which was intended to secure reservations for public purposes, made inlaying off towns, and to prevent litigation respecting them, is made an engine for wresting them from those for whose benefit they were designed; and that, too, through the instrumentality of him, whose purpose can only be accomplished by declaring that he has trampled the law under his feet.

But, in charity to Glascock, we will not impute to him a violation of the law. We are of opinion, that the plat, whatever may be thought of it by the defendant, is strictly within the act, and, that it conveys to Marion county the lots, for the use of the inhabitants of the town of Hannibal. ’ It is obvious, from an inspection of the plat, that the boundaries, course and extent of the lots intended for church purposes, are described. When any lot of the town is located, others may be. Id cerium est, quod cerium reddi potest. The length and width of all the lots of the town are written on the margin of the map. Their boundaries and course can be identified by the boundary and course of others. The most usual mode of identifying any vacant lot in a town, is a reference to lots whose location is known. The lots reserved are of the same size as of all others. In addition to this, the lots reserved are cancelled with red lines, and have written across them, the words “church purposes.” As to the words of reservation, it will be observed that the proprietor employs one of the words, which the act contemplates as sufficient. The 4th sec. of the act shows, that the reservation may be made by the word “intended/5 On the margin of the map is stated that the Ids in controversy are intended for church purposes. The same word is employed by the proprietor, in making the reservations of the public square and landing.

It is presumed that in the nineteenth century, in a Christian land, no argument is necessary to show that church purposes are public purposes, and that the inhabitants of a town have an interest in ground reserved for such a use. We all know what is meant by the phrase, nor will we indulge the thought, that the trust will not be carried out in the spirit in which it was originally created. To deny that church purposes are public purposes, is to argue that the maintenance, support and propagation of the Christian religion is not a matter of public concern. Our laws, although they recognize no particular religious establishment, are not insensible to the advantages of Christianity, and extend their protection to all in that faith and mode of worship, they may choose to adopt.

*640Tl>e act for thoincorporation of tIre city of Hannibal, passed February 21sf, 1£4">, sec. 10, vested in that city all the title to the lots in controversy, which was transferred by the act of reservation to Marion county, for the use of the inhabitants of the town of Hannibal.

If the statute concerning the plats of towns, were out of the way, and this question arose upon the fact of dedication alone, it is not perceived bow the defendant could maintain lús defence to this action. It seems now to be settled that w-hen the proprietors of town property lay it out into lots, with streets and avenues running through i% and sell their lots with reference to such plat, such conduct on their part, will he a dedication of the streets and alleys to the public, and they cannot afterward resume their control over them. And this principiéis equally applicable to the case of a similar dedication of ground, to be used as an open square or public walk, or a landing or commons: Trustees of Watertown vs. Cowen, 4 p. 513; City of Cincinnati vs. White, 6 Pet. 431; City of New Orleans vs. United States, 10 Pet. 662; 3 Kent 432, 51. The case in 6 Pet. shows, that the deed of the proprietor of a town, after making a dedication of a lot of ground to the public, would be inoperative to pass a title by which the inhabitants of the town could be disturbed in the enjoyment of the right conferred by the act of dedication.

The other Judges concurring, the judgment will be íeversed and the cause remanded.