235 Mo. 563 | Mo. | 1911
— In 1895, Granville M. Hayes and other owners of certain lands in Pemiscot county caused said lands to be surveyed and laid off into town lots, establishing the town of Gayoso City, now Hayti, in said county. Said owners caused a plat to be made,
It is admitted that at the time this dedication was made the county seat-question was in agitation; that it was known that it would have to be changed, but not known where it would be located.
The evidence shows -that it was the impression of the owners of this ground that the county seat would be located in the new town of Gayoso City, sought to be established by this dedication, and that block 29 was dedicated to the county for courthouse purposes, in the belief and with the expectation that the county seat would be so located. It appears that some lots were purchased in this new town, and adjacent to block 29, in the belief that the courthouse was to come there. It does not appear that any sales were made upon representations by the dedicators as to the future use of the block. It seems to have been the common impression that the county seat would be located in that town. As a matter of' fact, the county seat was not located at Hayti (Gayoso City), but was located at Caruthersville.
On April 1, 1901, the county court of Pemiscot county made an order appointing a commissioner, and
This proceeding was instituted September 20, 1905, by a petition in which the plaintiffs claim an equitable interest in and a right to use said block 29. The petition sets out the dedication referred to above, and alleges that lots had been sold relying upon such dedication; sets out the fact of the making of the commissioner’s deed in behalf of the county to the defendants referred to above; sets out the partition suit; charges that block 29 is about to be sold and used for other purposes than that for which it was dedicated, and prays the court to determine the estate, title and interest of the parties respectively in said real estate; to set aside the commissioner’s deed aforesaid, and to decree and :adjudge that the defendants have no claim or title to •said block, other than an interest in common with the public, and that they be debarred from asserting any private right or ownership, and for other and further relief. On December 12, 1905, an amended petition was filed by these plaintiffs, in which they state that they sue for themselves and others similarly situated, ■as tax-paying citizens of Pemiscot county. The amended petition sets out the dedication aforesaid, the order of the county court directing its commissioner to quit-claim the property to defendants, and the making of such deed by the commissioner, charges that the making of said deed was in excess of the power of the county court, and a violation of the trust created by the dedication, and prays the court to declare the order of the county court aforesaid and said deed to be void •and of no effect, that the title in and to said land be
The answer of defendants denies each and every-allegation not admitted or specifically pleaded to;admits that the dedication was conditioned that said courthouse should be moved to Hayti in 1896; admits, the execution of the deed by the commissioner; avers, that the county court never accepted the dedication, nor exercised any right over said land asi trustee or-otherwise; that the land has never been used for courthouse purposes or any other public purpose; charges the-institution of the condemnation proceedings above referred to, failure of the city to pay the award, and the successful suit by defendants to divest the title out of' the city of Hayti; charges laches on the part of plaintiffs, and estoppel by reason of their knowledge of the proceedings above referred to; also pleads that the-former suits between the city of Hayti and defendants, are res adjudicata.
It further appears that upon the trial of this casein the circuit court, after all the evidence for.plaintiffs, and part of the evidence for the defendants had been taken, the plaintiffs smended their amended petition,, but we are unable to determine from the record in what respect said petition was amended. The reference is to the pages and paragraphs of the petition itself. As these-pages do not correspond with the pages of the record nor with the pages of the printed abstract, it is impossible-for us to determine what matter was .stricken out, and we will therefore consider the case upon the amended petition as it appears in the abstract. The amended petition is directed primarily to the commissioner’s deed,, executed pursuant to the order of the county court, releasing all claims of the county in the block in controversy to the defendants, and prays the cancellation of' that deed. There is, however, a further prayer that the.
The defendants pray the court to declare that the right, title and interest in and to said block is in the defendants, and for further relief.
The court, in its judgment, finds the dedication as above stated, and finds and declares that the order of the county court directing the commissioner to make the deed, and the deed'itself, were in violation of the trust imposed on the county by' the dedication. It was ordered and decreed that said order of the county court and the deed by said commissioner be declared null and void, and that whatever title the heirs of the original donors acquired by said deed be divested out of them and be vested in the county of Pemiscot for courthouse purposes.
The record shows that this case was tried in what might be called a very sketchy manner. The evidence is meager, but enough appears to show substantially that this dedication for courthouse purposes was made; that the entire community expected the county seat to be established at this point; that, fading to secure the county seat, the county court regarded the equitable title as in the defendants, and that the purpose for which the dedication was made had become impossible of realization; that the county had never attempted in any way to use this block, and claimed no right to it; that subsequent legal proceedings, to which, however, neither the county nor these plaintiffs'' were parties, recognized the ownership in these defendants. It also appears that the county seat has been established at Caruthersville, and, so far as present intentions go, is permanently located there.'
I. If we should content ourselves with simply deciding whether or not the deed from the commissioner, upon the order of the county court, to the defendants is a valid instrument, divesting all right, title and interest out of the county, we would have no hesitancy in hold
The dedication in this case was made under chapter 97, Revised Statutes 1909. Section 10294 of that chapter provides that a duly acknowledged, certified and recorded plat “shall be a sufficient conveyance to vest the fee of such, parcels of land as are therein named, described or intended for public uses in such city, town or village, when incorporated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose.”
According to the designation in the plat in this case, block 29 was dedicated to Pemiscot county for courthouse purposes. It is so named, expressed and intended on the face of the- plat. Under the statute, therefore, the county held such block in trust for courthouse purposes, and for no other use or purpose. The effect is the same, taking the plat and statute together, as if the plat and accompanying dedicatory words had provided in terms that this block should be used for courthouse purposes, and for no other use or purpose. This statute has been construed by this court and held to limit the use to the use expressed in the dedication. The county cannot use the land for any other public use than the one expressed, and it has no power, of course, to divert the land to any private use. [Board of Regents v. Painter, 102 Mo. l. c. 470; Price v.
Counsel for respondents cites and strongly relies upon Reid v. Board of Education, 73 Mo. 295. In that case the block in controversy had written on it in the plat the words “public square. ’ ’ Under the head of ‘ ‘references,” number 8, on the plat, appeared the following: “Block number 9 declared public property for the purpose of containing the courthouse, should the town be selected for county seat.” The quitclaim deed, on the reverse side of the plat, after mentioning streets and alleys, says “also block number 9, according to the within plat or plan of the town which shall be and remain the property of said county of Lewis for the purposes aforesaid forever.” The court held that, considering all that appeared on the face as well as the reverse side of the plat, the block, nine, was dedicated to general public use. In that case it was a question of construction to determine what use was specified. The court properly construed the plat to dedicate the block to public use. In the case at bar there is no such question. It is clear., that the use was specified and limited to courthouse purposes. It is equally clear that under the statutes and the decisions of this court, the county court could not hold the land for a different use.
The real question in this case is, when, if at all, does the land conveyed to the county by the statutory dedication revert to the donor. First, does it revert under any circumstances? Dillon on Municipal Corporations (4 Ed.) vol. 2, section 653, lays down this rule: “Property unconditionally dedicated to public use or to a particular use does not revert to the original owner except where the execution of the use becomes impossible. If the dedicated property be appropriated to an unauthorized use, equity will cause the trust to be
In Goode v. St. Louis, 113 Mo. 257, Sherwood, P. J., cites and approves this rule, but holds that upon the facts in the case, which showed that the Specified use was feasible, there was no impossibility of its exercise; that in case of a nuisance the city could be compelled to comply with the terms of the dedication and in such case there would be no reversion. Here we are dealing not with a question of misuse, but with the question of the impossibility of execution, or abandonment of the use. In Campbell v. City of Kansas, 102 Mo. 326, a certain square in the plat had marked thereon “donated for graveyard.” It was so used for years. Subsequently, by ordinance, it was discontinued as a graveyard, the remains of those buried there removed, and the place converted into a park. The court held that the use was not perpetual, and that as the original use had terminated, the fee vested in the heirs of the original donors, free from the use. Judge Sherwood, commenting on this case in Goode v. St. Louis, supra, says that by the action of the municipal authorities “the execution of the use had become impossible.” Yet it was still physically possible to restore this park to its original specified use.
If, as this court has decided, the complete abandonment of a use, such abandonment being ordered by lawful authority, is equivalent to impossibility of use, it must follow that when the legal situation is such that the county cannot begin the specified use, such use becomes impossible of execution.
It is quite true, as contended for by the learned counsel for respondents, that mere delay in the use will not work a reversion. The cases cited to support this contention, however, present facts which show that the specified use is certain to come in time, and will be essential to the natural and harmonious development of the city or town. There is a difference be
The vital question, therefore, is, has it become impossible to use this land for the purpose expressed by the donors in the dedication? The cases cited above refer to situations where there has been an abandonment of the specified use, such abandonment being held to be equivalent to an impossibility. Here we have a case where such use has never been effected or attempted. We do not doubt that when this plat was filed the fee in block 29 passed to the county in trust, to be used for courthouse purposes, and so long as the property might be so used the fee remained in the county as such trustee. It is not, however, as respondents contend, an absolute, unqualified ownership in the county. It cannot be such if, as stated above, the property may revert by a complete abandonment or impossibility of use. When this plat was filed, there was what appeared to the owners of the ground, and to the community, every indication that the county seat would be there located, and, of course, the dedication was made in consideration of such expected location; but when the county seat was permanently located at Caruthersville, did it not become impossible for the county to execute the trust by using this block for courthouse purposes? We think it did. It is to be presumed that the county seat will remain where it is.
But even if this presumption should fail, there is no ground suggested to support any reasonable expeeta
We hold that the county court could not divest itself of the trust by a deed back to the heirs. But the fact) that the authorities made the order, with the recitals above quoted, shows that they regarded the county seat as permanently located at Caruthersville, and that the trust thereby became impossible of execution.
Under all the facts in this casé as shown by the record, we hold the execution of the use impressed upon the land by the dedication to be impossible as that term should properly be construed.
The finding of the trial court that the order of the county court, and the deed made pursuant thereto, were null and void, was correct; but if the judgment of that court as a whole should be affirmed, it would leave the matter, as we stated at the beginning of this opinion, still open for litigation. In order to establish now, finally, the right of ownership in said block 29, the judgment is reversed and the cause remanded, with directions to the circuit court to enter a decree vesting the title to said block 29 in the defendants.