*1 Dorothy Joseph Johnson, B. Estella Johnson Gra- Laura B. Ferguson, ham v. Robert E. Ferguson, Charles City of Sedalia Pacific Railroad Thomas, Missouri 650. (2d)W. County, Appellants. Pettis One, Division December
George Longun Montgomery & Brasher, George Bucher K. F. appellants. *3 A. Shortridge respondents. L. and Faul Bwrnett *4 HYDE, begun C. This action was in the Circuit Court of Pettis plaintiffs County alleged April petition on that Plaintiffs’ County, owned land in Pettis thus described: quarter quarter
“The northeast of the northwest of Section 5, Township 45, Range fifty 21, except strip a feet off the west wide of thereof, belongs which side to Missouri Pacific Railroad right part way, strip and which is a a except of said railroad of thirty thereof, feet wide off of the east side
public highway, rectangular tract described as follows: Beginning point Fair the west of Minter line Avenue State Boulevard, public highway, south and west feet feet northeast quarter corner the northwest quarter northeast running along said Section thence south the west line of said feet, running feet, State Boulevard thence 270.51 west running feet, running thence north 230 270.51 thence east place beginning.” alleged
Plaintiffs November the owners half quarter, east of Lot of the northwest which is the correct quarter of the land described as thé northeast quarter (hereinafter northwest referred to as “fractional acres”), executed, acknowledged designated plat, and recorded a (including land), Dundee Place city other "as an addition to Sedalia; but that it was outside of the accepted was never city. They sought a decree that their land was not affected plat. Ferguson
Defendants separate admitting filed a answer the execu- recording tion ownership their of Block 21 thereof, but stated that the northeast corner of their land *5 south 30 and west northeast the corner the fractional feet feet 40 in which acres it is located and that its dimensions were South feet, 290 feet, West North 299 They and East feet feet. pled estoppel against plaintiffs by reason of the sale of lots their title, plat predecessors with reference Dundee Place and asked Defendants referring plaintiffs’ deed.
the-exception, it, right of defendants subject to the plaintiffs’ land be declared the alleys Defendant platted. and to use the streets the setting up answers separate filed and the defendant railroad Thomas The de- relief. the same substantially praying the same facts and denial, defendant general county merely a fendant filed alleged matter and the new reply Plaintiffs’ denied filed no answer. rights in the estopped claim Ferguson defendants were parts the they bought, occupied and claimed alleys because alleys. plat by the as streets and land shown Place plat of makers of the was that evidence Dundee prior to parties, ail and that of title of the common source were upon the frac- they a trust deed plat had executed execution of the B. February 7, the John Thereafter, on 40 acres. tional acquired the makers Company the title of The Farwell subject deed. acres to the trust fractional Place, for the Block 21 Dundee and obtained lots, sold five May Then, purchaser trust deed. on lots from the a release of these purchased The land was trust was foreclosed. deed of days which in a few Company, Porter Real sale Estate conveyed Company, Company. The Farwell it back to the Farwell years 1895, 1896 1899 con- conveyances in separate three purchaser veyed lots of Block Dundee Place to the five more All purchaser. remaining ten lots to another of the first five and the grantor finally acquired by remote of defendants of Block was Ferguson. Fergusons acquired 21 on November title to Block conveyed August 8, 1906, on The Farwell except acres, except Block 21 of Place and fractional Dundee bounds, to one another north of it metes and tract described Through subsequent conveyances, plaintiff Estella John- Reifheisen. became, Graham, husband, W. and his brother Joseph son’s deceased acres, except July 18, 1910, fractional on the owners all of the strips taken rail- Block 21 of Place and for the Dundee Mrs. highway on the east. Johnson road west and daughter her inherited her deceased husband’s title. Her second Joseph bought husband, plaintiff Johnson, B. other interest. farming, used land for as did their Grahams Johnsons grantor. original along
In there was a street the east side of the the' was fractional acres described as Minter Avenue. The evidence opened years, was street several after the record- this ing opened was plat, that, up, about street from land, Road, along north line to the State Fair Main Street south, grounds called State Boulevard. This boulevard farther through Place, designated the ground, over Dundee opened *6 Minter an out- Avenue, possibly part Avenue. Minter for from let Block 21 as a street Road, to Main Street was used prior Place to that time. About 1908 of Dundee plat all of the city between Fair of of the State and the west limits Boulevard November., legally vacated, years later, Sedalia was and some ten 1919, the west limits of Sedalia were extended west to State Boulevard. only being any plat of other street shown on the evidence
open building or used that of Thomas. was defendant Pie hauled home, material for his city out one of the Place, across Dundee his land west of the railroad. testified He by he located his house so it be accessible would such street when opened. get He open gates had to through, several and no further use of this route was shown. The railroad was built about 1900 and right way its fenced openings without for it. There was evi-. no any dence farming use of the fractional acres for than other purposes. It was pastures. fenced and cross-fenced fields and into Ferguson grantor Defendants and their had a fence on three sides Block part which took in it, and a streets around barn alley across platted through Defend- the middle the block. ant E. Ferguson, however, Robert they willing that testified were open county them. surveyor testified that the correct de- scription land, Ferguson’s enclosed within fences, was that stated their answer. It was admitted that the land embraced Dundee Place city was all outside plat filed, limits when the for years thereafter. The fractional acres still. all' city outside the of Sedalia. There is no evidence in record that Ferguson’s petition in plaintiffs’ land is cor- rect. plaintiffs
The court finding found and entered a decree plaintiffs were petition owners the land described in their right therein; that defendants had no “that at'no time were parts designated those by of said real alleys estate as streets and belonging plaintiffs opened said land to the ever . . . public, and that designated of said streets and alleys improved by was ever any or laid out of Sedalia or person;” other unaccepted and that the anwas offer. appealed
Defendants have assign therefrom and a number of which following errors amount to First, contentions: That there was a dedication, by common law reason of the sale of the various lots the Farwell plat, reference which irrevocable; Second, That reason of Section Statutes Revised 1919, now Section rights Revised Statutes of defend- ants and the be lost period cannot pos- of adverse land, description of the session; Third, That an error in there is decree, be corrected. should statutory dedication there was a do not contend that Defendants any statutory method recording plat in accordance with *7 any common county. was there dedicating Neither land to a or being plat; the there the makers of ^aw dedication to any with reference they lots showing that sold no constitute any anything could which plat, opened the or did fractional Instead, they all of the sold a common law dedication. Furthermore, the at the time Company. the Farwell acres to conveyed to tract time whole was plat at the the was recorded and existing a already of trust Company, there was deed the Farwell at purchaser foreclosed. covering afterwards The it, which was of to land free and clear the sale took title the foreclosure v. Paving Co. filing Bituminous plat. effect from the [Granite 110 Mo. Perkins, 621; 148 W. Stewart v. McManus, 184, Mo. S. 1127; 102, 18 W. Perkins, 109 Mo. S. 660, 689; Hays W. v. 19 S. 21; 8 41; J. 46, 18 C. Sec. City Moberly, v. Mo. MeShane plat foreclosure, therefore, the 885, R. After this C. L. sec. 7.] totally con nullity, void, was was in a and the same though plat We dition had ever made. do overlook been mortgage, released from the five of fact that there had been 21, But such mere release prior lots in Block its foreclosure. a to lots, authorities, could not be construed these under the above they alleys platted all of as streets and when also release the land opened appellants had been used. do not understand never We circumstances, to so contend. in the release Under the reference only. J. description must been for C. purpose have See 61, finding plat 47. trial was was sec. court correct in that the Therefore, unaccepted plaintiffs’ an offer. is title not affected alleys plat the streets on the unless there was a valid and shown later common law of them. dedication Company com-
Defendants contend that the Farwell made such a dedication, mon law repurchasing purchaser after land from by making sale, separate conveyances the foreclosure three
remaining
fifteen lots
Block
of Dundee Place
original plat.
They
on
say
shown
adoption
plat by
this was an
conveyances
dedicating
and that these
have the effect of
all the streets
though
alleys,
it,
shown
the same
made and
Company.
support
recorded
the Farwell
In
of this contention
they
Corpus
60,
Juris, page
45,
cited,
cases
cite
sec.
there
Longworth
Longworth
Sedevic,
v.
165 Mo.
In the
case
sale
with
was one circumstance in the
reference
creation of the
recognition
estoppel,
there
a
and use
street
but
was also
parties,
public,
may
and the town
authorities.
It
also
noted, here, that this court
a
has made
distinction between the sale
plat,
absolutely
void,
lots with reference
wholly
which is
and therefore a nullity,
plat,
the sale
lots with reference to
merely
is
holding
statute;
defective or insufficient under the
that in the former case references thereto are to be
considered as
descriptive purposes, while
they
latter
would evidence an
intent
plat.
[Hayes
dedicate the streets shown on the
v. Kansas
City, 294
655, 1. 669,
Mo.
c.
Implied or common operates law grant dedication not as a upon the principle of estoppel. p. 57, an J.C. sec. [18 41; 8 sec. R. C. L. 906, 31; 315; sec. Rutherford v. Mo. Taylor, Fielding, 444; Perkins v. 119 Mo. 24 S. W. Richards Commission, v. Public Service 293 Mo. 239 S. W. City Co., (2d) 328 Mo. 838; Byam Kansas Pub. Serv. W. v. general principle person that “a held estoppel 945.] representation position assumed, where in- made or otherwise *8 equitable consequences who, having right would result to another has, good case, faith, so under all the circumstances of the to do 21 689, Or, R. C. L. sec. relied thereon.” stated 19.] [10 1119, Juris, requisite equitable Corpus page 122, estoppel sec. with asserted, is “an act inconsistent the claim afterward action by injury party party.” other thereon to such other Dedi- and requires acceptance by public. an intent to cation dedicate an 72, 67; 8 889, see. R. C. L. sec. In C. J. the case of dedi- 12.] [18 dedication) by estoppel (common cation law the dedicator’s in- may presumed “Upon inquiry tention be an from his acts. into a pais dedication in the intent to ascertained in- be is not the secret tent but by of the owner that intent his manifested acts and declara- tions.” v. Fielding, 119 1. e. purpose Mo. “Such [Perkins 162.] gathered
. open to from is be and visible conduct of owner, happens and it sometimes that his acts and declaration lands, clearly public an evince intention to dedicate use, to when doing fact he has no real so. In intention of such if in- case public upon dividuals act the owner’s intention as mani- so precluded resuming fested, right he from private his property land, doing operate if upon over the his so would a fraud them.” Public 293 Comm., v. Service Mo. 1. c. [Richards 634.] However, “the acts or declarations of the owner relied on to establish it must convincing unequivocal, indicating, expressly be by plain or implication, a purpose right create a public to adversely [Richards use the land to himself." v. Public Commission, supra.] case, therefore, where, Service "In a judicial without proceeding compensation, or solemn form of con- veyance, sought it is pais, to establish in a divestiture of the citizen’s so ought proof to be public, the in favor of the property
landed
doubt
no reasonable
persuasive
full as
leave
cogent,
Hamilton,
v.
and consent.”
owner’s intent
[Landis
existence of the
Brinck
448;
Hartt, Mo.
also,
v.
Rector
554,
561; see,
Mo.
1. c.
734;
379, 22 S. W.
Dautel, 116 Mo.
160;
Vossen
Collier, Mo.
v.
v.
53; Mulik v.
174 W.
705,
S.
Mo.
Joseph,
Carpenter v. St.
(2d)
(Mo.
37 S. W.
Jorganian
App.),
963.]
com-
and irrevocable
complete
to a
acceptance is essential
While an
67;
22;
22, sec.
18 C. J.
898, sec.
(8 R. C. L.
mon law dedication
Collins,
644,
Mo.
Hamilton,
554; Kemper
77 Mo.
v.
Landis v.
W.
378, 12 S.
Vanderburg, 99 Mo.
245;W.
Baker v.
S.
V
734),
22 W.
un-
Dautel,
S.
116 Mo.
ossen
action,
may
by formal
acceptance
be
der the authorities the
building
other
upon or
thereon,
public, or
by use
work
Prior
abutting
in reliance thereon.
improving
wise
1929),
acceptance
formal
Sec.
R. S.
no
(now
Act of
statutory dedication.
necessary for even a
[Otter
ordinance was
held, un
Bente, 240
It has also been
v.
S. W.
ville
Mo.
822.]
lots
cases,
purchase
“that
der the circumstances of some
single
of a
acceptance by
public,
purchase
effect an
J.C.
sec.
perfect
149.]
lot
the dedication.”
is sufficient
[18
facts,
correctly
upon their
decided
eases are no doubt
Such
of lots
case,
none, which holds that sale
we
and find
are cited to
circumstances,
is,
all
con
description
shown on
under
acceptance by the
clusive
of both intent
dedicate
evidence
circumstances,
public;
is,
as matter of
such sale
under all
or that
law,
plat may,
A
under
circum
a dedication.
reference to a
only.
J.
case,
purposes
C.
stances of
[18
655, 242 W.
In
47; Hayes
City, 294 Mo.
sec.
v. Kansas
411.]
*9
every
in
authority,
appellants’ comprehensive
contained
able
brief,
lots,
cir
is, in
to a sale
other fact or
there
addition
of
some
reliance, by purchasers or
clearly
which
shows such
cumstance
dedication,
that he
be
public,
proprietor’s
the
on the
acts as
should
estopped
deny that he
make the dedication. There was actual
to
did
controversy
long
by
in
use for
time
the
of the street or streets
Louis,
755;
in
191,
v. St.
157
57 S. W.
St.
Mo.
Buschmann v.
McGinnis
Louis,
523,
687;
121
26
165 Mo.
Longworth
Sedevic,
Mo.
S. W.
v.
221,
city improved
interest, acquired through dedication, was held occupied and used by possession; tract it had part of adverse the for it was tract, purposes for the which larger portion the of the Louis, v. St. in Heitz dedicated, many years. dedicator, for positive statements as dedi- 310 Mo. S. W. made alleys were marked cation at the auction sale where the ground positive statements as out on also afterward made the Furthermore, the district had the in all of these eases dedication. Korns, In urban Robinson v. up been built and was in character. statutory was a dedication Mo. S. W. there valid thereby unopened and the court said the an street vested title to by any period possession. not divested of adverse was proof upon establish a dedication was The burden of defendants setting up. it C. sec. Defendants’ evidence here J. 101.] [18 persuasive cogent, “so and full to leave no reasonable to us making doubt” of intent to dedicate an conveyances upon, any nor of action of public, relied de- grantors, thereon, justifies which fendants or their in reliance Instead, application estoppel. all of dedication of the acts and public negatives conduct of the owners both tracts and the subsequent of a conveyances. idea dedication Neither before any part lots in Block 21 nor after the sale street in was Place, acres, fractional 40 opened Dundee located or used public. many years ago by the The whole block came into the hands At of one owner. the same all the of the time rest tract came into solely farming the hands another owner it purposes. who used for Block 21 it, including owners of built a around fence therein streets, platted and built a alley bairn across the laid through Although out it. defendant hauled lumber Thomas across only it, people’s he opening gates. was able to do so other It was anyone not shown that else ever even county did that. While the road, Boulevard, opened along known State Fair was the east side purpose its tract, seems to have been to furnish an outlet from highway grounds, on the north another road State located a considerable distance south fractional It acres. was, apparently, only street or road the owners of the desired, they got along, ever it, many without years. land,
The owners of the east of the tract in controversy, had the part Place, of Dundee thereon, was located an- nulled county years action of the twenty court before this suit brought. today Even of Sedalia has not extended its *10 any boundaries to take in of the land plaintiffs owned and defendants. The whole scheme to create addition this pro- that city gressive optimism seems to upon have been founded not war- that was, happened what that It seems reasonable
ranted fact. the that boom, and real estate the bottom fell out the foreclosure of reality the that brought to face stern selling land it the salvage what could mortgage, undertook the a originally was farming The land purposes. again used for to be farm, and it remained spite promoters’ visions it farm, have, tracts of both previous owners today. All the a farm still always recognized it, have and taxes shows, so far as the record so owners of their land Plaintiffs became such. paid on it as been years, the foreclosure. over fifteen after remained, for had after it so why equity good court any show reason not The record does nullified bring plat, once but should, by decree, back to life this its peace- of a past to haunt owners rising out of the ghostlike now alleys through plaintiffs’ fields and farm, by opening up streets ful sub- do so would be appear that to pastures. It not and does forty years development If almost to defendants. stantial benefit farm, city upon will this thriving city not build of Sedalia only degree, to do it. We could magic, judicial there is purposes use it for the impossible plaintiffs continue to make it for always been for which it has used. upon Hayes v. Kansas to that commented
The situation similar noting there, “many that trans- court, This City, Mo. 1. c. 670. made, with Bismark Place had been of lots within fers and blocks appellants plat thereof, parties other than reference to the having platted such addition within embraced city, after many paved improved graded, and otherwise corporate limits, had its said, this therein,” the contention that was sufficient as to streets City: plat of Bismark marked on the Place all of vest not “Admittedly extend its boundaries to Bismark city did years attempted statutory after the dedi- Place for more than ten years During nullity cation. those filed was for all urban purposes, property all in the reference thereto transfers were necessarily descriptive purposes, upon for and not reliance If, city streets and thereon. when the avenues marked embraced property Bismark Place, there were those owners therein who then elected to and avenues far as property treat such streets so their thereby city, if city was affected as dedicated to the elected alleys then, accepted, undoubtedly, to treat such streets right property city enjoyed owner to dedication and acceptance properties in so far concerned, as individual were property those owners who alleys, did not thus offer such streets affecting acceptance, tjieir its the same could taken without their consent compensation. or without If original merely had been defective and insufficient under statute, question might arise, original then a different but the
375 being property owners were nullity a nullity, and was a plat city had elected, they after the thereby, unless, stated, as affected dedi- of a common-law limits, processes initiate the extended its by act could not their property owners cation, in that event such unwilling owners.” non-consenting bind invoke here, not sufficient to showing, defendants’ "Wehold that plaintiffs. Defend- estoppel against of dedication the doctrine made, dedication, law once contentions, a common ants’ public, vested rights and the irrevocable, of landowners and that the possession, com- period of adverse thereby, be lost cannot 1929) R. went mencing (now 1865 Sec. Act of after the fully authorities effect, They sustained are correct. are into possession, upon on adverse herein cited. does not turn This case the failure to show a dedication. against respondents.
Appellant estoppel by also claims an deed con This contention is based on the fact that the veyed grantors referring appellant’s description a remote conveyed the plat of Dundee Place and thereafter grantors by a resPon(lents’ remote
res^ ^an<^ by exception plat; which ex deed which referred to the respondents’ chain ception appeared in all the deeds title. plat however, that the reference these deeds to the have, held We case, was, circumstances of this for de Place under the of Dundee only. unnecessary it purposes We therefore deem to enter scriptive map subject re estoppel deed. a discussion of the into “A may of the location and sur serve as evidence ferred to a deed conveyed, operating an roundings property to be without as of the 929-931, J. See, also, C. estoppel.” C. J. sec. 80.] [21 Sooy, 128-130; Front Hotel Co. v. Fed. Beach secs.
C. C. A. 579. ’ plaintiffs though, land necessary, to correct the It is There basis in the for the contained the decree. is no evidence “699 Avestof northeast call feet south and feet corner” allege Fergu- the fractional acres. Plaintiffs that the
gons occupied and claimed title to of the land included in streets. It is evident that the fences had years they twenty been where now are for at least before the suit brought. will important parties prevent all future It litigation by describing correctly they now land own. Plaintiffs’ decree, land should be described in the in accordance with testi- county mony surveyor, follows: quarter “The half of Lot of the east northwest of section town- ship 45, range 21, County, Missouri, except in Pettis strip belongs west feet wide off of the side thereof to the Missouri except strip Railroad Pacific feet off wide highway, and thereof, part of the side which is a east described follows: a-tract Boulevard, Fair State “Beginning west line of point on the of the northeast west and 30 feet public highway, 765 feet south sec- quarter of said 2 of the northwest corner of the east half of Lot State Boulevard *12 said along west line of tion thence south point 278 feet 290 feet to westerly direction feet, thence in an thence north beginning; place of 299 feet west and south beginning.” place feet; east thence feet findings It con- written, only of fact. decree, states as it is in form order, except costs, and is not judgment as to final tains no judgment. It should amended add an order complete final plaintiffs, land in free vesting title of above described in the any rights of defendants clear of in the of Dundee Place filed record alleys shown 28, 1892, and recorded deeds on November office of the recorder of County, except such page the records Pettis in Book located. Fair Boulevard now part of land included State said null and void and of should also declare to be The order E. title in and Laura B. Fer- and should vest Robert force or effect guson excepted tract. to the above judgment court and the re- of the circuit is reversed cause
manded, with that court a decree in favor directions to to enter expressed. Fergu- plaintiffs, in with the views herein accordance Stwrgis, CC., son and concur. foregoing opinion by Hyde, C.,
PER CURIAM:- -The adopted opinion judges of the court. All of concur. al., S. E. Frizzell Appellants, v. Stewart Lumber et et (2d) al. 44 S. W. 615. One, Division December