113 Mo. 257 | Mo. | 1892
I. The contention in this case in part turns on the meaning of the word “common,” to the purposes of which the litigated property was by the original proprietors dedicated ‘ 'forever. ”
Counsel for plaintiffs insist that the word in question has a more restricted meaning than is usually attributed to it, and, in support of their view, that it means “parle” or “pleasure ground-,” cite the definition of Worcester, “An open ground, the use of which is not appropriated to any individual, but belongs to the public, or to many persons; public, uninclosed space— a .term sometimes applied to an inclosed public ground or parle, in a city.” The words which we have italicized, sufficiently show what the ordinary signification of the term “common” is, and what the exceptional; and that the latter meaning applies to the words in italics. Parties in making contracts or in the execution of
So that looking alone to the standards of our language, we find that “common” is by no means the synonym of “park” or “pleasure ground,”' but possesses a much more comprehensive meaning. But quitting lexicographers and turning to legal authorities and adjudicated cases, we find that “common” is defined as: “An uninclosed piece of land, set apart for public or municipal purposes, in many cities and villages of the United States.” Black’s Law Dictionary.
The adjudged cases hold the same views and give expression to a similar line of thought and theory. Thus the supreme court of the United States, when ■speaking of the word under discussion, as used by the proprietors: “We are .not to understand the term as
Smith made an addition to the village of Grand Rapids. At the intersection of two streets crossing diagonally was a piece of ground marked on the plat “common,” and,', touching the meaning of this marking, the supreme court of Michigan say: “This indicates an intention on the part of the owner to dedicate it to the public for any use which the proper authorities might deem proper, and which could be legitimately regarded as public. And although it is now claimed that at the time this plat was made the proprietor thereof did not fully understand the meaning of the word “common” as there used, yet we are of opinion that this can make no difference. A person is concluded by the words he deliberately adopts and uses in an instrument, whether he at the time fully understood their legal signification or not. The rights which third parties may acquire cannot be affected by the individual views or understanding of the proprietor in such a case.” White v. Smith, 37 Mich. 291.
In. platting -the city of Philadelphia, there were several large squares on the plat, and on each was marked, “Eight acres for public uses.” Afterward contention arose as to the legal effect of the dedication thus made, and in considering this question the supreme court of Pennsylvania said: “When prop-ei’ty is dedicated or transferred to public use, the use is indefinite, and may vary according to circumstances. The public not being able themselves to manage' or attend to it, the care and employment of it must devolve upon some local authority or -body corporate' as its
It is difficult to conceive of a case more closely resemblant of the one at bar than that of Newport v. Taylor's Ex’r, 16 B. Mon. 699. In that instance on the plat of the town an open space appeared between the lots on Front street and the river, and was marked ‘The esplanade, to remain a common forever.” Regarding the uses to which this open space thus marked could be applied, the supreme court of Kentucky say: “Was the esplanade to be a common of pasture, a
Similar declarations as to the meaning and full import of the word “common” are to be frequently found in other adjudicated cases which the industry of counsel on behalf of defendants has brought to our attention. Crawford v. Railroad, 67 Ga. 405; Commissioners of Bath v. Boyd, 1 Ire. L. 194; Scott v. BesMoines, 64 Iowa, 438; State ex rel. v. McReynolds, 61 Mo. 203; Cummings v. St. Louis, 90 Mo. 259. In the case last cited a definition of the word “common” is given similar to that employed in Cincinnati v. Lessee of White, supra.
Now, if the cases already cited give the correct definition of the word under discussion, and there are none
II. But should it be granted that a diversion of the common from its original uses had occurred, still this concession would not aid the plaintiffs in their present endeavor to obtain for their own %ise this valuable property, and for the reason stated in Barclay v. Howell's Lessee, 6 Pet. 498, that: “If this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery, to compel a specific execution of the trust, by restraining the corporation, or by causing the removal of obstructions. But, even in such a case, the property dedicated would not revert to the original owner. The use would still remain in the public,' limited only by the conditions imposed by the grant.”
On this topic, Judge Dillon remarks: “Property, unconditionally dedicated to public use orto 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 observed or the obstructions removed.” 2 Dillon on Municipal Corporations [4 Ed.] sec. 653 and cases cited; Curran v. Louisville, 83 Ky. 628.
In this case, counsel for plaintiffs expressly admit
In the circumstances here presented, mere nomiser -or misuser will not work a reversion; this is abundantly shown by the authorities If a departure be shown on the part of the officers of the city in the observance of the trust created by the dedication, resort must be had to a court of equity to compel a performance ' of the trust, or the obstructions thereto removed; but here no such departure has been shown, and, if anything could be deemed obstructions to the observance of the trust, the facility of their ready removal is both admitted and proven, and, more than that, since this proceeding was instituted, the plaintiffs have made a formal demand on the city that the land be cleared of obstructions and used as a common, “a very singular demand,” as Judge Dillon aptly remarks, “if it was a thing impossible to be done.”
III. It is however insisted that Campbell v. City of Kansas, 102 Mo. 326, gives full support to the claim of plaintiffs. This is a total misconception of the rulings in that case. There a certain square in the plat had marked thereon: “Donated for graveyard.” It was used for that purpose for years. Subsequently the rapid growth in the ■ population and size of the city, and considerations of the health of the’ city, necessitated the passage of an ordinance vacating the donated lot for future purposes of sepulture; requir
In such circumstances as these, it was held that the place had been discontinued and abandoned as to the purposes for which it had been originally dedicated, and therefore the heirs could claim a right of reverter and recover in ejectment. To state the facts in that case is to broadly distinguish it from the case at bar and to show that the doctrine laid down there is in harmony with the authorities heretofore cited in this, to-wit, that, owing to the legitimate exercise of the-police power and the subsequent acts of the municipal authorities and of the public, the execution of the use had become impossible. This is the gist and theory of that case. See Newark v. Stockton, 44 N. J. Eq. 179.
IY. But, apart from all other considerations, the circuit court correctly ruled in dismissing plaintiff’s petition, for these additional reasons. They sue not to■ enforce the original trust, hit to enrich themselves. Thus, suing alone in their individual capacity and not as the-vindicators of a public use disregarded and trampled upon as they claim by the municipality, they stand' before this court as ordinary suitors, suing to obtain private relief and to secure individual benefits. They and their ancestors have stopd silently by while the city in good faith, and during a period of time of nearly forty
It was on the score of possessing an interest such as this which caused this court to affirm the judgment of the circuit court, which, at the instance of a landowner who owned property some three blocks away from the square, enjoined the city from carrying into execution an ordinance which' authorized a decree to be entered for the sale of the very property now in dispute, and the proceeds to be divided half and half between the city and the present plaintiffs. Cummings v. St. Louis, 90 Mo. 259.
We therefore hold, that, viewed in any light, the plaintiffs have no ground for relief, and hence affirm the judgment.