158 Mo. 204 | Mo. | 1900
Plaintiff brings this suit in equity to divest the defendant city of the title which it holds to a piece of land conveyed to it by plaintiff’s father, now deceased, for a certain public use, and to vest the same in plaintiff, as her father’s devisee, on the ground that the city has diverted the property from the use for which it was conveyed and applied it to a different purpose.
The defendant demurred to the plaintiff’s petition, the demurrer was sustained, and plaintiff declining to plead further, final judgment was rendered for defendant 'and the plaintiff appeals.
The essential averments of the petition are to the effect that in 1860, Elihu H. Shepard, plaintiff’s father, by deed conveyed to the city of St. Louis a piece of land, described in the petition, “for the purpose of a public market to be called Shepard’s Free Market” in which all persons having wholesome provisions for sale should be licensed to use and occupy stands free or at nominal rent, and it was expressed in the deed that if within one year from its date, the city should not erect a market house on the lot, then any responsible company might do so upon paying not more than one dollar a year and maintain a market house thereon upon like conditions; that the city accepted the deed, took possession of the lot, erected a market house thereon as required, and maintained the same for about ten years, but after that period ceased to use it for a market house and instead erected an engine house for use of the fire department, and has ever
The only question presented by the record is, should the demurrer have been sustained?
The learned counsel for appellant very clearly demonstrates that if the plaintiff has any rights in the premises at all they are such as' are cognizable only in a court of equity. She has no legal title to the land and therefore no standing in a court of law.
The appellant’s position is thus stated in her brief:
“By the deed of conveyance and dedication the legal fee in the land passed to the respondent; there was no reversion or re-entry provided for in the deed; the respondent could not lawfully divert the use of the premises from market house purposes to an engine house for the use of the fire department, and, therefore, the appellants have the right to invoke the aid of a court of equity to restrain the respondent from making any other use of the land than that for which it had been conveyed and dedicated, and to compel the execution of the trust if it were possible to execute the same. If, upon the facts before the court, it has become impossible to execute the use, then it was for a court of equity to declare such impossibility, and at the same time a reversion of the title to*209 the appellant, Mrs. Hand, as devisee of the original donor, and to divest the title out of the respondent, and vest the same in her.”
It will not be disputed that one to whom property has been conveyed in trust for a particular use can not lawfully divert it to a different purpose, and if he attempts to do so a court of equity, at the suit of one authorized to sue, will interpose and prevent the misuse and abuse of the trust. But the further proposition, that property that has been so conveyed, absolutely, without provision for reversion, will revert when the trustee abandons the prescribed purpose and attempts to divert it to another use, is one to which we can not assent. Authorities are cited by the learned counsel which sustain the position that where an easement has been created, an abandonment by the grantee of the use will have the effect to restore the property to the grantor freed from the easement, and where title has been conveyed on condition it will revert when the condition fails. But when the title is conveyed absolutely in trust for a given purpose it is not subject to recall by the grantor, and the only power a court of equity has in the premises is to prevent the abuse and compel the trustee to perform the trust precisely or as nearly as possible as prescribed in the grant. A reference to some of the eases chiefly relied on by appellant will illustrate what is here said.
In Cummings v. St. Louis, 90 Mo. 259, there was no express conveyance of the fee to the city in trust for a purpose, but the owners of the land had laid off an addition to the city and on the recorded plat had designated a certain lot “to be and remain a common forever.” The court said: “That the proprietors dedicated this parcel of property to public use for a common, by the use of the words above quoted, can not be doubted. Eor all other purposes, however, they remained the owners.” The effect of the plat and
Campbell v. Kansas City, 102 Mo. 326, was also a case of dedication by plat. The owners of the land platted had marked a lot “Donated for graveyard.” This was in 1847, before our statute in reference to recording plats, but the plat was used publicly, lots were bought and sold according to it, and the public did use the lot in question for a graveyard until 1857, when the city passed an ordinance vacating it as a graveyard and thereafter used it for another purpose. The plaintiff held the title of the original owners. The court said.; “It is clear from the testimony in the record that the original proprietors never devoted this land to the use of a graveyard by any instrument of writing, in the form of deed or plat, sufficient to comply with the requirements of the law relating to the transfer of interests in real estate. It therefore follows that the legal fee must remain still in the original proprietors or their legal representatives. But the actual use of land may be devoted to public purposes without deed or writing of any chai*acter........The estate thus parted with does not extend beyond the use of the land, leaving the technical legal fee in the donors, which, however, must be held by them for the donated use as long as that use continues.” The case was therefore, in the opinion of the court, only one of a grant of a use in the land, and it was of such a grant that the court in further discussion used this language: “My conclusion is that the plaintiffs in the case made in this record must prevail if the use of the land for a graveyard has been discontinued and abandoned by the public and its representatives. Upon any lawful cessation of the use, the title reverts.” Those words must be construed in the light of the facts to which they are applied; they were not used in reference to an unlimited fee that had been
In Baker v. St. Louis, 7 Mo. App. 429, to which appellant also refers, there was a grant by deed to the city of land for a street and market place with express reservation that when the city should cease to use it for such purpose it should revert to the grantors. That reservation makes the essential difference between that case and the case at bar. Occurring in some of the authorities to which we are referred, is the expression, somewhat negative in its form, that the property does not revert to the original owner because of its being diverted to a purpose different from that designated in the grant except when the designated purpose is impossible of execution. The plaintiff seemingly for the purpose of bringing her case within that exception has averred in the petition that it is now impossible to use this lot for a marke't house. There will be no necéssity for a discussion here of the legal effect of a deed conveying land to a trustee for a purpose impossible of performance in its nature, or even a purpose that should afterwards become impossible of execution, because this petition does not show either such condition. It alleges that in consequence of the act of the city, that is, the act of building an engine house on the lot, and its location, and
To what is above said may also be added that the plaintiff has acquiesced too long in the alleged disregard of the purpose of the deed to be now entitled to the aid of a court of equity. The court requires reasonable diligence of all who seek its relief. The deed was made in 1860, the city accepted it, built the market house as required and so maintained it for about ten years, that is until about 1870, when it built the engine house; the plaintiff’s father was then living and continued in life until 1876; no complaint was made by him and none by the plaintiff until this suit was filed in 1895. Thus for nearly if not quite 25 years, this alleged wrong has continued and no reason is given why it has not sooner been brought to the attention of the court. Even if the plaintiff had a better case than she has on the law, the court would require some explanation of her long acquiescence in the mat