98 Mo. 422 | Mo. | 1889
— This is an action to restrain the city of St. Louis from removing, as an obstruction, without compensation, so much of a brick building on the south side of Market street, in said city, as projects beyond the' line of said street, of which, as at present located, the plaintiff and those under whom it claims, had been in the open, notorious, peaceable, continuous and adverse possession and occupancy, claiming title thereto for more than thirty years before this suit was commenced. The building was erected in 1840. The street was dedicated in 1846, and in improving it, the city conformed the structure of the street and sidewalk to this projection, and the premises have ever since remained in the same situation in relation to the street.
The only question is, whether the city’s right is barred by the statute of limitation. Revised Statutes, 1879, section 3227, provides that “Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this state.” This section was first enacted in 1865. GK S. 1865, p. 746, sec. 7. This section is prospective in its operation, and does not apply to cases where the right of entry had accrued before it was enacted. School Directors v. Georges, 50 Mo. 194 ; McCartney, Admi'x, v. Alderson, 54 Mo. 320.
As to right of entry by political subdivisions of the state or municipal corporations upon lands held for a public use, prior to the enactment of that section, the statute of limitations has been held to apply the same
We find nothing in the brief of counsel or in the cases cited to weaken the force of these authorities, and nothing in the facts of this case to take it out of the principle announced in them. The possession of plaintiff and his grantors antedated the dedication and existence of this street. The city, in opening and improving it, recognized their occupancy of this part of it and conformed its improvements to such occupancy and kept them so conformed for more than thirty-five years, before action was taken to remove that part of the building projecting into the street. The public never did have the use of the part of the street so occupied. Its right has always rested in grant. The property has been bought and sold again and again upon the faith of that occupancy thus recognized. This is not the case of one who projects an obstruction into a public street, either open or in actual use, thereby creating a nuisance which lapse of time may not sanction, but that of a prior bona-fide occupant against a right accrued which, in justice, ought to have been asserted within the time allowed by law, and contains within it all the essentials of an equitable estoppel to the assertion of that right. However that may be, the rule of property, established by the cases cited, has been too long maintained in this state, to admit for a moment the suggestion of the
The judgment is, therefore, reversed and the cause remanded to the circuit court with instructions to make the temporary injunction perpetual.
