*1 65o 1922. TERM,. Vol. Hayes City. v. Kansas Such, very time- the face of the all. instructions case plaintiff his must rale that the worn establish preponderance against of the evi- a defendant the expressions which cases are some dence. There might these some credence be strained so- to lend as language hardly should think such instructions, but we require mere These be so construed. instructions judgment of weighing probabilities, than the of rather plaintiff upon question, jury i. shown e. has the vital defendant’s preponderance evidence of the a damage. engine set out the fire which did judgment remanded Let the be reversed the cause urged pointed well can out. matters Other errors 'except All Wood- concur, be taken of retrial. care P. absent. son, who is J., Appellants, v. al., CITY,
LELIA L. HAYES et KANSAS et THOMAS al. PHILLIPS Two, Division June City: Territory Remote Outside Dedication.
1. STREET: at- lying tempted wholly of a in an addition outside n city, municipality territory a two miles with another limits, by intervening corporate filing by it an between recording addition, owner of such on which and the thereof, part ,is outlined said street as city, city jurisdiction are invalid. The no said street has corporate territory or to embrace within its limits so remote, private person highway no can establish a over ¡consent public, without' his accept power such dedication. City: County Ap- -: -: as Trustee for -: Statute: (Sec. 6573, 1879) declaring plication. R. The statute S. that “if village incorporated, shall *not be then the town fee aforesaid, conveyed, proper shall lands as be vested in the of such trust, aforesaid, purposes county for the uses in like and none application incorporated city; had no an and hence the other” COURT OF MISSOURI. SUPREME incorporated not, county, located, hy did which such an two use of words on the addition situated recorded “ limits, repre- miles from the the streets and avenues *2 use,” hereby plat sented on to are dedicated become this city. vested with the uses the The the fee to the .streets of entity accept applies municipal the statute when there is no to attempted dedication, apply attempted the but it does not when city; county incorporated dedication was to named and the had a power accept no more to a dedication in such case than the city accept attempted had to an dedication of streets and avenues remotely corporate situate far from limits. its Acceptance; Subsequent -: — : No 3. -: -: Use. an Where city power accept attempted incorporated had to an no dedication plat by of certain streets avenues on a described recorded the owner, private he has the to resume dominion over his them, proposed to recall or revoke his dedication. -; -; by -: Public 4. Road: Established Individual. county possessed the then ex- statutes courts in 1887 the Under power county roads, clusive to establish new could ac- jurisdiction only quire petition householders, to do so the of alone, right, acting individual the no had to establish them. -; -:5. Common Law Dedication: Revocation. A common- city of a law dedication a tract of land is a as to a con- tinuous, dedicate, offer to which irrevocable the dedicator cannot retract, properly but which until does not become a street the con- showing acceptance authorities' do some act stituted thereof. And dedicator, attempt where the in an to an create addition to an incorporated city, corporate limits, by miles two from its record- ing plat addition, a of such he on which declared that “the streets represented plat hereby and avenues on as this to dedicated public use,” totally addition, but failed to create such and the city having nothing showing authorities done thereof he resumed dominion over the streets and he and those under him way negative to continued use it in such a as a to continuous dedicate, dedication; offer to there was no common-law now, against city present owners, cannot the of consent the take possession supposed exercising power of the streets without eminent domain. Theory: -: Binding Appeal. 6.-: -: -: Trial on city, having theory The defendant tried the case on the that there statutory a valid proposes was dedication of the street of which it possession, by theory plaintiffs’ to appeal take is bound on judgment enjoin from a defendant suit to the TEEM, Vol.294]
Hayes v. Kansas on n the judgment taking possession, and cannot sustain said unpleaded theory dedication. there a common law Subsequent Extension: Use of Plat: -:-: -:-: Estoppel: of Others. streets Acts through corporate an limits of an two from the addition miles plat incorporated filing recording- by the being nullity, part, be- addition of which said streets were of the addition cause the on account the remoteness jurisdiction streets, years accept ten an extension later addition, corporate and sub- limits so to embrace said as many sequent reference transfers of and blocks parties grading pavement plaintiffs, other than and. may many plat, urged be of the streets outlined city; thereby in the but sufficient to vest affected streets necessarily years during all ten references .those descriptive purposes, and since before the transfers were for years question expiration owner of the street of those ten dedication, it, revoking thereby inclosed as to such street *3 they subsequent them have since con- the owners under and and purposes, tinuously exclusively private their own used it for purpose part any it never a to dedicate of to street evinced have addition, segregated it from the rest of the said uses and is acts persons estop present city other do and such owners of the city deny deny or to of the over street that to dominion being nullity public plat use. been dedicated to has ever it dedication, in the addition were the owners of lots not af- as a they elected, thereby city after had unless extended fected same, processes to to embrace initiate its limits of a dedication, law such initiation owners of some common non-consenting unwilling not bind could owners of of others. Payment -: Transfers: -: -: -: of Taxes: Ac-
8. cording to Plat. Nor does the fact that after limits were supposed to embrace the addition the owners of the extended street descriptions used in suit the recorded thereof in the payment and transfer of lots in the addition and in the sale estop they taxes, deny thereby them to that other after initiated said extension a common-law dedication the street which inclosed described thereon before extension was purposes, for ever since used different made have for such describing is to be considered as a use of method properties. enjoin -: -: -: Manner of Use. In a suit in- an supposed corporated taking possession of a Mo.—43 294 658 MISSOURI, SUPREME OF COUBT ground public use,
tlie it never been dedicated has evi- plaintiffs private dence of the manner in which have used beyond purposes the issues and irrelevant. Appeal from Jackson Daniel Circuit Court.—Hon. E. Judge.
Bird, AND REMANDED. REVERSED
Hardin B. Frank P. Walsh and Mornard, James P. Ayhoard appellants.
(1) finding decreeing The court erred alleged was, public Baltimore Avenue is, and still City, appellants rights street in Kansas and that have no subject except same, the easement alleged public, (a) Because said street was never condemned as used as or such, such, dedicated to p. Cyc. 1875, use as a street. Laws sec. 28 2; 605; University, (b) v. Louis St. Louis St. Be- jurisdiction Cty authority cause or to ac- cept improve or to dedication thereof, control, main- alleged street, tain said University, invalid.
thereof was
St. Louis v. St. Louis
Municipal
supra;
Corporations (5 Ed.),
Dillon on
sec.
y.
Riley City
9 N.
Rochester,
Y.
980;
64; Gibson v.
Village
Supp.
Forsythe
178 N. Y.
Massena,
851;
v.
Cory,
Johns,
Ind.
Hammond,
522; Jackson v.
(N. Y.).
Vaughn Village
385, 388;
v.
Greencastle,
App.
Stealey
210;
Kansas'
Hayes v. Kansas alleged (f) never street was Because said Kansas any roadway highway kind, or street, county highway road, or it if it ever such, even was was County, long Jackson and was abandoned as incorporation there- prior street within the of said to the City. R. Sec. S. 7847, of Kansas extended limits after Payne Improve- v. Road 1909; R. S. 10446, Sec. 1889; (2) -9283,R. S. 1919. 1046; 216 S. W. Sec. District, ment County. any to Jackson There never was App. 144 Mo. Pav. Co. v. McMann, Bituminous Granite (b) grantee, county (a) named was not as The 609. person. corporation county a natural not or was (5 Ed.) (b) Municipal Corporations sec. 1070. on Dillon County said as trustee hold could Jackson (3) R. 1919. There was 9287, Sec. S. for Kansas Carpenter user, common law. v. St. no dedication Joseph, App. v. Mo. DeVall, State 157 715; (4) Avenue ever was dedicated Baltimore If 587. county highway, county abandoned as a abutting alleged on the lots owners of to the reverted way. R. John- 1889; 10446, 1909; R. S. Sec. S. 7847, Sec. 594; 590 to State v. 586, Mo. DeVall, 237 Rasmus, son v. Joseph Ry. App. v. Terminal Co., St. 268 588; Mo. 157 City City Campbell 102 v. Mo. , 345; v. Smith, 59; 47, Mo. Village Brick Excelsior Co.w Haver- 336; 328, 238'Mo. Cyc. Ansby 48 N. Y. Hinde, 57; v. 28 146; N. T. 142 straw, acquire greater (5) could title than Kansas Springfield, County v. had. Duckworth 184 S. Jackson admitting (6) over court erred the ob- The 476.W. appellants evidence relative to the jection method appellants’ premises, operation business any pro- not constitute defense to said did evidence ceeding. 152 Mo. 283, 301; Sedalia, State v. Smith Company, 204 Springfield 944; & Electric S. W. Gas (7) decree of the trial court Cyc. is in 30, 21 and Article II, Sections Mo. violation Asphalt Paving Ridge, Co. v. Barber Constitution. City, 209 Mo. '513; Holmes v Rourke v. 384; Ry. Mo. 46; Co., Gorman v. Railroad, Holmes Street *5 660 MISSOURI, OF SUPREME COURT
Hayes
City.
v. Kansas
Carpenter
City
Joseph,
483;
255 Mo.
v. St.
E. E. Aleshire Edwin G. re- spondents.
(1) controversy The dedication land in public was valid. Sec. R. 6559, 1879; S. Laws 1887, p. R. 228; 1879, S. sec. 6573. Prom Section 6573 above it appear’that will troversy, the title fee the real estate con public,
for the use of the in Jackson was vested County, controversy because the land was at time City. outside of the limits of Town Kansas of Cameron Stephenson, (2) statutory v. 69 Mo. A 378. valid operates dispenses to vest the fee and with necessity part public. of an on the of the Day,. 390; Laddonia v. 265 Mo. v. 240 Otterville Bente, Hopson, App. Hill Mo. 150 Mo. 291; v. Reid 611; v. Board 73 295. When the is Education, executed and by operation county filed the title vests of the by any and not act of the trustee or other statute, state agency. (3) Robinson 250 Korns, Mo. 672. v. When the plat subdividing owner files a and lots and his into blocks
showing on
its face streets or avenues, conveys
abutting
sells
he
streets,
public
thereby
dedicates to
streets
laid
so
out
City
v.
St.
Louis,
him. Buschmann
Mo. 523; Otter-
(4) Upon
179 Mo.
Brown v.
441;
Clay
250 Mo.
Products
Korns,1
663, 672;
R-obinson
17;
v.
Wright
City of Doni-
Louis, 246 Mo.
v.
346;
v. St.
Co.
reading of
phan, Mo.
From a
these cases it will
169
give
the statute is not intended to
relief
be observed that
County,
City
but that it
to
is
Jackson
providing
of limitations
statute
shall run
statute
against
appellants
public.
(6)
The
of
fronting on
be
Baltimore Avenue
deed
estopped
Parkway and 49th
them
Street
tween Ward-
denying
of Baltimore
the existence
Avenue
aas
from
City
public
110
Louis,
618;
v.
St.
Mo.
street. Heitz
Huffman,
367;
262 Mo.
v.
v.
Caruthersville,
Laddonia
improvements
(2)
Day, 265
of one
Mo. 383.
acceptance.
is
Pleitz v.
in an addition
sufficient
St. Louis,
240’Mo.
618;
Bente,
291;
v.
Caruthers-
110 Mo.
Otterville
y.
(8)
Mo.
R.
Huffman,
262
Sec.
S. ville
public
period
providing
that non-user
continuously
any public
years
road,
ten
shall be
apply.
same,
does not
abandonment
deemed an
It
only applied
existing
roads
or which
have
voluntarily conveyed
not to the title
lands
existed, purpose
thereafter used
to be
trust
establishing
be
thereon as
should
streets
needed.
App.
Busse,
ex
118;
v.
136 Mo.
State
rel. v.
Muir,
State
App.
Louis,
v.
REEVES, C. Plaintiffs petition in 19, 1920,filed their the Circuit Court Jack- County injunction against son for an defendant agents (respondents) to restrain said in- private terfering alleged with their use of certain portion city. temporary Avenue in said A of Baltimore restraining upon hearing made, order was but final same plaintiffs’ bill dissolved dismissed. However, plaintiffs, pending proceedings, motion of further *7 appeal including restraining the to this the court, order and continued in re-entered force. petition alleged plaintiffs that the were citizens City of Kansas were and residents and the owners in fee simple of certain lots Block D and C they in Kansas and that had owned the to- same, “ gether appurtenances with all real estate and abut- period ting thirty years, for a of more than thereon, un- conveyances warranty per- deeds and der certain property, owning occupied have said and sons the same complete, uninterrupted and continuous and full, had possession thereof under said deeds and claims of owner- during period ship all and of said of time; that all of plaintiffs and were at the said are times mentioned here- capital officers, directors and owners all of of the Lyle Company, plain- Rock and that the stock said Lyle Company, corporation duly Rock tiff, ganized or- existing by
and under and virtue of the Consti- during and the State Missouri, tution laws of of and years occupant, has been tenant, last thirteen and possession of the above described real estate and with plaintiffs during of the other herein, the consent and said engaged in the has been time manufacture brick and quarrying of rock for sale and distribution; that im- becoming occupant mediately after the tenant and of said TEEM, 1922. y. Company, Lyle great at and Rock the said estate, real expenditure many expense, considerable erected and constructed, dollars, built, thousands buildings, upon rock placed kilns, said real estate brick appliances equipment machinery and other and crushers, operation proper business, and necessary to the said plaintiffs enjoyed during have all herein of said time premises.” possession peaceable of said and the exclusive through that the defendant its It was then averred Engineer of the Board of Public and members Superintendent “are threat- of Streets now Works premises purposes go upon ening said willfully removing wrongfully therefrom all said property, equipment buildings, personal machinery and plaintiffs and have and now at- herein, owned unlawfully forcibly occupy prem- tempting any right, having title interest ises, therein, without equity, law, or in to said herein de- either scribed, any right possession they nor have there- of.” they up further averred built
Plaintiffs large premises business and that lucrative agents, threatened interference and its injure wholly destroy out, carried would said busi- if ness. alleging open, were “in full,
After obvious, uninterrupted enjoyment complete, continuous, and ad *8 premises possession of” said “under claim verse conveyances persons right owning from intermediate and holding prior granting the. same to the and and con plaintiffs veying property they of said herein,” July, platted allege in there was “that the afore known as addition, Bismark Place, said were wherein designated, before and . . . the lots there contained platted pretended designated avenue, was said Avenue; that said time as Baltimore to the part designated pretended present time no of said avenue public travel, ever used for nor was an}7 was there ever purpose expended money upon the same for the of con SUPREME COURT OE MISSOURI, verting county road, it into an actual used and or plaintiffs grantors street; that and their ever have used, using platting, since the aforesaid and are said now ground in connection with said and the aforesaid lots, buildings improvements part thereupon and are in and period years, have been for a thirteen consecutive and that the same were all erected and built, constructed knowledge, acquies approval, and with the consent, and cence of the and each of defendants, them, and predecessors they estopped and now office, forever deny ownership plaintiffs, forcibly of these or to unlawfully quiet enjoyment and interfere with their during . . thereof. ownership . That all of the time of the period thirty '. . . for a than of more years, pretended platted, avenue, said has never been public purposes, irregular, for used and on account precipitous uneven and condition and location said during real and the same been estate, is and has all of impracticable any absolutely said time such use.” alleged property It was further that all said “was beyond corporate located limits -of Kansas pretended Missouri, and dedication of avenue said highway and to Kansas and thereof year beyond at said time, was 1887,” unlawful power authority city, the charter said and that it corporate so without remained limits of said period years ten of more than thereafter, that said being plaintiffs null and void, they having and those whom under been in ad- claimed possession they property, enjoyed verse of said now uninterrupted possession. an denying ownership plain- Defendants answered, unlawfully said tiffs of that were about premises authority, to enter said without but asserted said included an platted July, regularly accepted by addition designated on the filed there was a street or avenue called Baltimore Avenue. Defendants plaintiffs occupying admitted were alleged street, *9 TERM, y. occupied period they but same that bad denied specified the dedication petition, that in their denied and in 1887 were thereof of said street allege July, in null “that Defendants void. and as Bismark now land, then owner of duly platted known designated Bis- an addition said land into acknowledged plat duly and mark said was Place, which Coun- Jackson filed for the Recorder’s Office record plat ty, owner ded- said said Missouri; and Avenue and use a street Baltimore as icated subsequently Kan- other streets in said addition.” That land, as to embrace said sas its limits so graded, extended paved, im- otherwise and and which was including proved in said addition, various of the streets part of said Baltimore Avenue. plaintiffs aver have en-
“And defendants said, using occupying, and now croached and do, avenue without lawful so to or a nuisance.” use make thereof constitutes allegations plaintiffs
Upon sustained trial, respect petition ownership their to their with certain occupation use thereof in blocks and contigu- that “Bismark Place” was not Place; Bismark platted; City at the time it was that it to Kansas was ous great distance south said that the situated a separate Westport, municipality, intervened addition and Kansas said between and that Place was considerable distance south of Westport. that said had never
It been was shown used purposes, many years filing for urban but for after the agricultural was and used enclosed particular dairy purposes, and that in- litigation rough in this volved uneven and im- any portion practical for the use of thereof as a street plaintiffs highway, and that constructed valuable portion properties upon a of Baltimore Avenue, said Bismark Place. It marked was ad- MISSOURI, SUPREME COURT OF *10 City. agents, through re- mitted that the about to were plaintiffs alleged move property from said and im- would the restraint and have done but for so posed by injunction the suit.
Respondents’ testimony, objection ap- over the pellants, gases, tended to and show that fumes smoke, issuing plaintiffs, from the brick kilns maintained operated property, great and on said constituted a an- noyance vicinity, blasting to residents in the that the quarry, rocks in the stone thereon, situated was annoyance appeared peril. constant source of It controversy without that in limits of Kan- 1897 the southwardly sas had extended to said point that thereafter had been considerably extended to a beyond, prop- so that at the time of this suit all of said erty corporate city. was within the of said limits
Appellants urge invalidity here the of the dedica- tion of Baltimore Avenue in Place, pro- that the decree the trial court violated certain visions of our denying fundamental because law, to cit- equal protection the taking prop- izens law compensation. erty Respondents without urge in turn validity sharply said dedication, issue is and the question. drawn that contention, by appellants,
I. The made dedication of said Baltimore Avenue in Bismark Place invalid, thereof must undisputed be sustained. It was that when Bismark platted separated Place was in 1887 it was from Kansas City by approximately a distance of two Dedication: miles, lATestport, independent with an Remote municipality, intervening. It is not con~ Territory. by respondents any
tended that the had jurisdiction corporate to embrace within its territory jurisdiction limits a so remote. Without it accept alleys could not a dedication of the streets. and private person of the so-called Bismark and no TERM, Hayes v. Kansas highway public with his
can over establish a public. [Downend v. out consent of Conceding owner that the 156 Mo. 56 W. 902.] S. (the city) power possessed to dedicate, consequence accept, power wholly without attempted acceptance were dedication and proposal made and never been had as ineffective ifas v. St. [City Louis been filed. St. University, 155; J. 72.] 18 C. Louis urged by respondents although iii. *11 accept dedication, yet by was unable to such the
general words used the dedicator-"The streets and represented hereby avenues as on this dedicated County to use' `-the of Jackson be- County as came vested with the f cc for the uses and Trus~ee. purposes support therein mentioned. In contention, portion of this we are cited to a of Section Revised Statutes to the effect that "if such city, village incorporated, town or shall not be then the conveyed, aforesaid, fee of such lands shall be vested proper county trust, in like and for the uses and purposes aforesaid, and none other." provision appli~ahle This is not to the facts under incorporated city, consideration. Kansas Cit~ was an attempt and the city. was made to create an addition to said city, It was not an effort to create a new town or incorporated city, but to create an addition to an they either the dedicat.ors could dedicate to said not, could and their efforts so to dedicate to the if defeated, could not serve to dedicate the same streets county. words, to the In other the statute cited under- county took to vest title to the streets in the when there municip~l entity accept. was no to The dedication in case, being void, Oounty, represent- this ing null and Jackson public, accept the was not authorized to a dedica- proposed municipal entity. being tion to another There dedication, prop- of the the owner of said erty had the to resume his dominion over same as MISSOURI, SUPREME OP COURT
against proposed public, revoke or and thus recall his [City University, dedication. Louis St. Louis v. St. 88 Mo. l. c. 159.] testimony overwhelming that such course pursued particular property
had been and that in question purposes been enclosed used other attempted continuously since dedication.
III.
necessary
In
above,
view of
to
questions
parties
discuss
the briefs
raised
respect
rights
County
with
of Jackson
may say
street.
we
the date
However,
at
of this
county
possessed
dedication,
courts
power
county
exclusive
to establish new
roads
upon
only
jurisdiction
acquire
petition
could
do so
specific
number
householders.
It was shown
coprt
county
respect
that the
bad never acted with
controversy,
and no individual citizen has
right, acting
public highway.
to'
alone,
establish a
Snoddy
[Foster
216;
44 Mo.
Dunklin,
v.
v. Pettis Coun
ty,
361;
Foster,
45 Mo.
Zeibold v.
revocable offer to which dedicate, the dedi- cannot retract, cator but which does not DedtóaSónaW properly become street until con- showing acceptance stituted act authorities do some City, thereof.” [Downend v. Kansas In 60.] this case there was common-law dedication. The statutory dedicator dedication and com- pletely failed and thereafter dominion resumed over his property, and both himself and those him under it used negative way thought in any as to of a continuous plat offer to dedicate. It is trae that the was on file, TERM, City. City both with the with the Recorder of Kansas yet of Deeds, effort to this connection with was his. City pur- create an addition no other to Kansas pose. His offer the streets therefore was to dedicate question City, as an addition and it Kansas to purposes an offer to other dedicate streets to be used say city. than anas addition be idle to to It would rejected that his offer to to when dedicate Kansas by continuing the law, must stand as irrevocable offer County, either in him, favor to which of Jackson he never made the offer, or to when in the Kansas years might qualify accept course of to said offer. say proposal Thus to would be to that a hold void any part without offer of dedicate further action on the against would stand irrevocable as him dedicator proposal, municipal and become a when some valid en- tity might years qualify accept in the course of it.
In the at bar case there was no such indefinite and vague proposal contrary very but on the made, it was á parties offer definite treated and so all hereto making up the issues in case this and in the trial. Respondents theory tried this ease that there statutory theory was a valid dedication, and the same Lydik, must be here. [Railroad followed 187 S. W. (Mo.) 891.] that, Respondents many conclusively
Y. showed transfers of within blocks, Bismark Place, had been by parties made with reference to the thereof appellants, other than having and that the after corporate em- platted braced such addition within its limits, graded, paved improved and otherwise Estoppel. many they urge streets therein, and this all of was sufficient vest said streets marked on This is doubtless true toas portions of Bismark Place, but such dedication did not original proposed arise from the effort made dedi- nullity, *13 city acquired effort was a cator; and if the any rights rights on plat, streets marked such MISSOURI, SUPREME OP COURT
© CO b- [*]
inevitably parties. is arose from It the conduct of familiar doctrine that in to constitute a order alley municipal always corporation, in a neces not pursue sary statutory [Heitz Louis, course. v. St. Admittedly city 110 Mo. not 618.] did extend years boundaries to Bismark than ten Place for more attempted statutory During after the those dedication. years plat nullity purposes, was a urban filed for all property and all reference thereto in the transfers of descriptive purposes, necessarily were not in reliance the streets and avenues marked thereon. city when If, embraced Bismark Place, there were property those therein owners who then elected to treat property such avenues streets and so far as their thereby as to the and if dedicated affected elected to alleys accepted, treat such streets and ns then undoubtedly property city enjoyed owner and the to dedication and far as individ so properties property ual were concerned, but those ow alleys, ners ing did not thus such who offer streets and affect property acceptance, their to the for its the same could not be taken their without original consent or without com pensation. plat merely If the had been defect ive insufficient under the statute, then different question might original nullity, hut the arise, was a being nullity the owners were affected thereby, stated, unless, elected, after the processes limits, extended its to initiate the of a com mon-law in that dedication, event own non-consenting their ers could not act bind or unwill ing property owners. case of Otterville v. Bente, respondents, l. does c. not aid as the merely filed in that case was defective and insuffi notwithstanding statute, cient under the but such defect insufficiency grew chiefly lots were sold, the town along in that addition out lots laid the streets accepted the town therein and most streets entirety. The dedicators had done thing a lawful imperfectly. *14 671 TEEM, APEIL
Vol*. 294] Hayes City. v. Kansas
In original case bar the addition plat at awas The had tried to do an nullity. dedicator unlaw ful a thing, period re years elapsed ten before spondent extended its limits so as to embrace in not property by suit. It at that time its act could vitalize a void act so as to affect the in property owners said Bisnaark Place without their consent. Nor does the case of Buschmann Louis, v. St. 121 aid Mo. respond for in that in ents, case covered land question within the limits corporate and moreover in statutory case there was a dedication, but defective accepted because not by city. expressly case Caruthersville v. Huffman, relied by respondents, on upheld the validity a de- fective legal by com- applying mon-law doctrine.
We have examined carefully all the authorities cited respondents, and in each find that case every was merely defective and not void. For instance in the of Hatton v. case St. Louis, Mo. 634, the plat was not acknowledged, recorded as though required by law, the court held just as as efficacious statutory dedication, because the doctrine of common- law dedication applied.
In purchaser case no this was deceived, as the street was never controversy open. The testimony was that street, marked as plat, lay across deep with water ravine, flowing therein with high cliffs of opposite bluffs on the side, and that the land covered always has said street been wholly impracticable urban Even if purposes. pleaded, we fail to find .where estoppel apply. would
Persons acquiring Place ac in respect to a quired. rights passage way over and theoretical along said at the particular point controversy. not It was a servient property, and the plat, stated, being wholly void, only possible use was descriptive purposes. The case of Milling Co. OP MISSOURI, COURT SUPREME
Riley, approach questions 133 Mo. nearest 574, is the turning estoppel involved but user were here, points Drimmel v. Kansas that case. See also App. plead estoppel Respondents in their VI. did that, urge appellants, having but here answer, ac-. cepted descriptions under the con- deeds paid having plat, tained taxes same estopped description, *15 and to are should be ¡smart; Descriptive that Avenue in B Baltimore assert Taxes.PaymS city. Ap- public is Place not a street any property
pellants not sell of said did plat. said void with reference to by such transfers reference stated, hereinbefore As description only, and in not reli to were that upon the streets marked thereon, the dedication ance subsequent nullity, plat by use of said as that awas and accomplish property so as to owners, a com and acceptance, and would be not bind mon-law dedication ing though appel appellants, upon is true even and this descriptions use the in -contained continued to lants description. paid plats thereon [Boat such taxes and Semple Realty 213 S. Co., Place W. 900; Bank v. men’s Paving McManus, S. W. 621.] Co. city acquired any if that It obvious is VII. rights rights of Bismark such streets were acquired dedication and common-law after limits so extended as to embrace ad- said rights property were limited to and dition, electing dedicate, in- would not owners elude appellants using portion who were of^e! exclusively pri- addition for their said own purpose purposes, neither evinced a vate thus to any portion nor did thereof, dedicate withdraw from any any property privileg- owner said addition other respect acquired by property es them with in suit, TERM, Carr v. Barr. such, appellants im- property times was at all
passable.
¡Much respondents testimony with was offered using appellants respect were in which to the manner pro- property private purposes. This said ceeding is property, using regulate manner respondents proceeding that Bal- assert wherein but a point that timore at Avenue obstructing improperly appellants testi- it. Such wholly mony beyond irrelevant and issues, objection timely have been excluded should appellants’ counsel. appel- premises must hold we considered, rights using within their
lants were per- respondents question, been have should enjoined fol- petually therewith. It from interference judgment and the cause reversed, must be lows that the court below to enter to the with directions remanded up judgment respondents restraining perpetually lawful use of said with the interference further by appellants. Railey White, concur. GG., ordered.
It is so *16 foregoing opinion by Reeves, PER CURIAM: The opinion adopted All of the court. is C., judges concur. Appellants, v. M. et IRENE al., CARR
DOLLIE al. BALLIET et BARR Two, Division June Pay Ignoring Debt: Breach ESTATE: WiU: Devise TRUST disregard provisions will, directing the execu- Trust. To pay and two sell a farm an incumbrance tors certain others, of trust. a breach