Hatton v. City of St. Louis

264 Mo. 634 | Mo. | 1915

OPINION.

I.

BOND, J.

_ .. .. . street.

(After stating the facts as above.) — The pleadings and proof in this case require an application of the law governing the right of a city to acquire streets and alleys by a statutory and a non-statutory dedication and of the rule relating to the effect upon such titles of adverse possession for the period of ten: years.

The dedication of so much of his estate as was. shown on the properly executed, acknowledged and recorded plat made by George Buchanan in his lifetime was in strict statutory form and vested title to the streets and alleys therein designated, without any act on the part of the city and was thereafter irrevocable by the dedicator or his heirs. The estate thus conveyed was a public easement in the land shown by the plat to-be set apart for streets and alleys, the beneficial ownership to the center of the streets remaining in the abutting owner. [R. S. 1909, sec. 10294; Union Elevator Co. v. K. C. Suburban Belt Ry. Co., 135 Mo. l. c. 366; Thomas v. Hunt, 134 Mo. l. c. 403; Snoddy v. Bolen, 122 Mo. l. c. 491.]

About nine years after the death of George Buchanan, the remainder of his lands not included in the-plat executed in his lifetime and which had been leased by his executors, were subdivided-and platted by certain commissioners appointed to partition them by his.. heirs, so that the respective allotments should be bounded by certain streets and alleys which should be dedicated to the city. This plat, though not acknowledged, was duly recorded as required by law. It was therefore a common law or a non-statutory dedication just as efficacious as a statutory dedication would have been, provided it was accepted by the city in any of the ways recognized by law, or provided the owners by any acts having that effect have estopped themselves to question the dedication. [Whyte v. St. Louis, 153 Mo. l. c. 90; Railroad v. Baker, 183 Mo. l. c. 322; Buschmann v. St. Louis, 121 Mo. 523; Heitz v. St. Louis, 110 Mo. l. c. 624; Thurston v. St. Joseph, 51 Mo. l. c. 512; City of Hannibal v. Draper, 15 Mo. l. c. 640; Baker v. Squire, 143 Mo. l. c. 98; Baker v. Squire, 77 Mo. App. l. c. 332.]

In this case there was evidence tending to show that the city accepted the dedication of the streets and alleys marked in the unacknowdedged plat, by omitting them entirely from any assessment for taxes and by taking charge of one of the streets — Kenneth street, designated on said Plat ££ A”- — and improving it under ordinance passed for that purpose, changing its name and causing it to be widened by a condemnation proceeding ; that all of the maps denoting the official highways of the city have included the streets and alleys mentioned set apart in Plat ££A” as is shown by the records of the office of the Board of Public Improvements and the street commissioner.

The evidence further disclosed that immediately upon the filing of the report of said commissioners in partition, the heirs of George Buchanan executed deeds inter sese, describing the lands by the boundaries afforded by the streets and alleys, set out on said plat. Under these circumstances, we conclude that the dedication of the street in said plat ££A” was complete, both as to the heirs of George Buchanan and the city, and vested a public easement in such property just as much as if said plat had been duly acknowledged before it was recorded.

II.

street; Limitations.

This leaves for discussion the point made by appellants that the evidence for plaintiff: disclosed an adverse possession by him, beginning prior to August 1, 1866, when the statute, excepting lands devoted to public use from the Statute of Limita^ong^ ]3ecaine operative (Johnson v. Rasmus, 237 Mo. l. c. 592), which ripened into a fee simple title to the streets and alleys in question. In determining that question, it must be borne in mind that the instant case is one at law, for though brought under section 2535 it is predicated upon the assertion of a legal title in fee simple to the property described in the petition, and there is nothing in the answer or the relief asked therein which converts it into an action in equity. [Toler v. Edwards, 249 Mo. l. c. 159, and cases cited.]

Plaintiffs’ claim of title by the Statute of Limitations, or by abandonment, if available at all, presented issues properly triable by jury. [Kansas City v. Smith, 238 Mo. 323.] Furthermore, it is conceded by the learned counsel for appellants, and such is the law, that no rights or title accruing from adverse possession could accrue to plaintiff (appellants) unless plaintiff began an actual, open, and notorious possession of the streets and alleys in dispute under a claim of ownership prior to the 1st of August, 1866, when the statnte was enacted, which prevented the running of the Statute of Limitations upon adverse possession against the defendant city. The evidence adduced by appellants in support of their contention relates to the occupancy and enclosure of some of the property under a lease made to a partnership of which the original plaintiff was a member in 1857. Both that lease and the subsequent deeds which plaintiff obtained from the coparceners after the municipal partition recognized the existence, present and future, of the streets laid out on the plat and the dedication made in the lifetime of George Buchanan, and those designated on the plat made by the commissioners in partition after his death. That circumstance was proper for consideration by the trier of the facts in passing upon the issue as to adverse possession, as was also the fact that said land was never taxed by the city and that an ordinance was presented to the city for the vacation of these streets which appellant testifies was withdrawn at his request. The credibility and weight to be given testimony as to adverse possession was peculiarly a matter within the determination of the trial judge sitting as a jury. No instructions were asked or given in this case. Nor any exceptions interposed during the course of the trial, which are presented for review. In such cases we cannot substitute our theory of the weight of the evidence and the credibility of the witnesses for that of the trier of the facts, and must sustain his findings, if reasonably justified by any rules of law applicable to the pleadings and evidence. [Scarritt Estate v. Casualty Co., 166 Mo. App. l. c. 570.] He has made his finding on the issues against the appellant, and under this record it is not subject to review by us. The result is, that the judgment for defendant is affirmed.

.All concur.