69 Mo. 642 | Mo. | 1879
The plaintiffs in this case became owners of the lot described in the petition, which was lot 16 in the sub-division of the Barr estate, by purchase, in 1873, from Samuel Singleton and his wife and their five children. There is no dispute as to the regularity of their title. But, in answer to their action for trespass by defendants in breaking down their fences, a previous dedication of the land or lot to the public was claimed, and consequently that the road ovei-seer, and those of the defendants who acted in conjunction with him, were justified in removing the obstructions on this public highway. Whether such dedication was effected by the acts of those from whom-
Mary B. Barr was the fee simple owner of lot 16 in 1858. By her will in 1858, she devised it to her son, Virgil C. Barr, and in the évent of his death, without issue, to her sister, Sarah A. Singleton and her children. Virgil C. Barr died in 1865, without issue. In 1867, Samuel Singleton, the husband of Sarah A., along with fourteen others, owning lands between the Ralls county road and the city of Hannibal, executed the following deed: “ This article of agreement, made and entered, by and between Thomas Bowling, Aedna Owen, widow of Adison Owen, deceased, L, C. Owen, William H. Owen, Caroline Owen, Edward Owen, Juliet Carstarphen, formerly Juliet Owen, John Carstarphen, her husband, Elizabeth Gordon, formerly Elizabeth Owen, A. G. Gordon, her husband, Samuel Singleton, Chapel Carstarphen, Charles Blume, Thomas Kaup, all of the State of Missouri, and Thomas Carr, of the.State of Illinois, witnesseth, as follows : That for and in consideration of our mutual benefit and advantage, and the convenient use of our lands lying and bordering on the south line of the Hannibal & St. Joseph Railroad, in Marion county and Ralls county, between the points hereinafter designated ; and for the further consideration of the interchange and payment to each other, by the rest, of the sum of $5.00, the receipt of which we hereby acknowledge, we each agree and covenant with the others, and each of the others, that from and after signing and acknowledging, and delivery of this contract, we, and each of us, will and do hereby convey and dedicate for the use of each other, our heirs and assigns forever, the right of way over our lands lying in Marion and Ralls counties, in the State of Missouri, between the points hereinafter designated, and bordering immediately on the. south line of said railroad for thirty feet wide, beginning and ending as follows, to-wit: Be
On Monday, the 22nd day of February, 1869, the following proceedings were had in the county court of Marion county: “ This day was presented to the court the petition of Thomas Bowling, praying the coui’t to accept the road that is now of record in the circuit clerk’s office at Palmyra, which road is known as Bowling avenue, as a public road, which petition being examined by the court the same is referred to the road commissioner, who is instructed to view and lay out the same, and report his proceedings therein to this court, at the April court.” And afterwards, to-wit: On Thursday, the 6th day of May, 1869, the following proceedings were had, to-wit: “ This day was presented to the court the petition of Thomas Bowling, praying the court to accept the road that is now of record in the circuit clerk’s office at Palmyra, which road is known as Bowling avenue, as a public road, which petition being examined by the court, the same is referred to the road commissioner, who is instructed to view and lay out the same, and report his proceedings therein to this court at the April court.” Which petition is in the words and figures as follows, to-wit: The undersigned would respectfully submit to the honorable county court of Marion county, to accept the road that is now of record in the circuit clerk’s office at Palmyra, Marion county, Missouri, which road is known as Bowling avenue, and
Thomas Bowling.
February 22nd, 1869.
And afterwards, to-wit: On Tuesday, the 8th day of June, 1869, the following proceedings were had, to-wit: “This day was presented to the court the report of'the county road commissioner, on a petition referred to him by -this court, the 22nd day of February, 1869, signed Thomas Bowling, praying the court to accept the road that is now of record in the circuit clerk’s office at Palmyra, which road is known as Bowling avenue, stating that ‘ he had examined the aforesaid road, and would recommend that the petition be granted,’ therefore, it is ordered by the court, that the report of the road commissioner he accepted and said Bowling avenue be, and the same is hereby declared a public road and highway.”
The defendants also offered in evidence a deed from Samuel Singleton and his wife, Sarah A., to W. P. and Oney Carstarphen, dated February 25th, 1871, to lot 17 of Barr’s sub-division, in which were the usual covenants of seizin and good right to convey, and that the premises were free from incumbrances. The description of the lot conveyed is followed by the words “ except the parts of said lot set apart for Bowling avenue and the Hannibal & Central Missouri Eailroad.” This deed was rejected by the court as irrelevant to the issue, and exceptions were taken to the ruling. There was also evidence to show that the Singletons, father, mother and children, had frequently traveled over this avenue, and recognized it as a public highway, and some of them had declared it to be such. Upon the close of the testimony the court gave the following instructions :
1. If the jury believe from all the evidence in the cause that William Barr, in his life-time, entered into possession of the land in controversy, claiming title by purchase from the United States Government, and continued in the actual possession thereof up to the time of his death,
2. If the jury find a verdict for plaintiffs, they should assess the actual damages sustained by plaintiffs, by reason of taking down and removing of the fence and gates ■; and if the jury further find from the evidence that the act of the defendants in taking down and removing plaintiffs’ fence and gates was malicious, they may assess in favor of plaintiffs and against defendants, by way of exemplary damages, in addition to the actual damages, such sum as the jury may believe, under all the circumstances, to be a just and reasonable punishment for the malicious act.
3. In assessing the actual damages sustained by plaintiffs, the jury should allow such sum as would reasonably be sufficient to pay for materials and labor required to rebuild plaintiffs’ fence and gates, and place them in as good condition as they were before they were torn down ;
4. Although the jury may find that one or more defendants did not engage in tearing down or removing plaintiffs’ fences or gates, yet if the jury find that such defendant, or defendants, were present and did aid, abet or encourage the parties engaged in the act, such defendant, or defendants, are liable in this action to the same extent as the parties actually engaged in the act.
5. Although the jury may believe from the evidence that after the fence on the land in the petition mentioned, was moved in so as to leave a strip of thirty feet between said fence and the line of the right of way of the railway company, the said strip was with the knowledge of Mrs. Singleton and her children used by all persons desiring to pass over the same in going to and from Hannibal, and although the jury may further find that Mrs. Singleton and her children, themselves, passed over said strip in going to# and from Hannibal, such use of said strip does not operate, in law, as a dedication of said strip to the public use as a public highway.
6. If the jury find from the evidence that, from 1869 up to the time plaintiffs erected their fences and gates in 1874, the portion of the land described in the petition from which defendants removed the fences and gates, had been traveled daily by the public going to and from Hannibal, and the said Bowling avenue was respected and considered, in the neighborhood, as-a public road; and if the jury further find that, after the erection qf said fences and gates plaintiffs were notified to remove the same; and if the jury further find that defendants, in the discharge of what they believed’ to be a legal right, did take- up and remove so much, only, .of the plaintiffs’ fences and gates as stood within.the limits of what they believed tó be a public' high
7. If the jury find from the evidence that defendants believed, in good faith, that plaintiffs’ fences and gates taken down and removed by them, were standing in a public highway; and if the jury further find that defendants removed said fences and gates, in the exercise of what they believed to be a legal right to remove obstructions from the public highway, such act of defendants was not a malicious trespass, and the jury should not allow any sum by way of exemplary damages.
8. The act of the county court in declaring Bowling avenue a public road, as shown by the records in evidence, did not operate to vest in the public the right to use any part of the land, in the petition mentioned, as a public highway.
9. The deed read in evidence by defendants, executed by Samuel Singleton, Thomas Bowling, and others, did not operate as a dedication of any part of the land, in the petition mentioned, to the public use as a public highway.
The following instructions were asked by the defendants and refused: 1. The court instructs the jury that if they find that the alleged trespass consisted in the removal of certain fences, &c., which had just been erected by plaintiffs across a strip of land, which, in 1869, and continuously ever since, and up to the time of said erections, had been used and traveled by the public as a public road, without 'hindrance or interruption, and that said strip of ground, so traveled, had been, during said time of said use, and at the time of said erections, was fenced off’from other lands and visibly marked and designated on either side, on the borders of said strip of land, by good and substantial fences, and in full public use, as aforesaid, and that the defendant, Henry S. Elzea, was the road overseer of the road district in which said strip of ground was situate, and that said strip of ground had-been worked as a county road by
2. The court instructs the jury that if they find that Philip Frederick, Hemiah K. Johnson and John Pate made an agreement with Thomas Bowling, one of the defendants, that if he, Thomas Bowling, would secure the purchase of the Singleton land for stockyard purposes, being the land involved, that the public travel.over said land on what was called Bowling avenue should not be obstructed, and that Thomas Bowling agreed to give his services to-the securing of said purchase, and did secure to said Frederick, Pate and Johnson said purchase in pursuance of said agreement, and that said Frederick, Pate and Johnson paid |500 of the purchase money and entered into possession of said lands, and erected valuable improvements thereon, and verbally declared that said avenue should remain open for public travel, aud assented to the working of said avenue for the purpose of traveling thereon to and from said land and * * for hauling materials thereto to build said stockyards, and for business purposes in carrying 'on said stockyard, thereby using the lands of some defendants
3. The court instructs the jury that if they find that the alleged trespass consisted in the removal of certain fences, &e., which had just been erected by plaintiffs across a strip of ground which, in 1869, and continuously ever since, and up to the time of said erections, had been daily used and traveled by the public as a public road without hindrance or interruption, and that said strip of ground so traveled had been, during said time of said use, and at the time of said erection, was fenced off from other lands and visibly marked and designated on-either side on the borders of said strip of ground by good and substantial fences, then the plaintiffs had no right to dispossess the public without process of law; and if the jury further find that the plaintiffs did, without any process of law, erect across said thirty foot strip of ground the certain fences, &c., mentioned in plaintiffs’ petition, and thereby prevent further travel, and that the plaintiffs were duly notified before and after erecting said fences, &c., not to obstruct public
4. The court instructs the jury that if they find from the evidence that, in 1867, Samuel Singleton, in communicating with the parties signing the instrument of writing, creating what is called Bowling avenue,, represented himself as the owner of the land herein involved and thereby induced them to enter into said agreement in good faith, believing that he was the owner thereof, and that the Bowling avenue thereby created ran over his land, to-wit: the land involved, and was,so understood by them, and that, thereafter, the said avenue was opened in good faith, and the fences removed to the south line of said avenue, and that Samuel Singleton, Sr.’, and his two' sons, John and Samuel C. Singleton, set back the fence on said land herein involved, and said avenue was then thrown open for public travel, and that public travel greatly benefited .the lands bordering on said avenue, and that said avenue was, in 1869, known, recognized and used as a public road, and that, thereafter, Mrs. Sarah Singleton and Samuel Singleton, Sr., and said John and Samuel C. Singleton, declared the same was never to be stopped up, and said Samuel Singleton and wife declared the same to be a public road, and all the children of Mrs. Sarah Singleton continuously traveled on said avenue from the time the same was opened until the same was closed, in 1874, and that said .avenue was in full view, in front of, and close to the family residence of said Samuel Singleton, where all of said parties, to-wit: Samuel Singleton, his wife and children resided, and-that the public trafile continued uninterrupted thereon until said avenue was closed, and .that said wife and children had actual knowledge of said Bowling avenue, and actual knowledge that said parties in said instrument believed that said road was a public road, and if the jury further find that the said Singleton, and wife and children
The verdict was for the plaintiffs, and damages were assessed at $500. The usual applications were made for new trial, &c.
It will be seen from this statement that the obstacles to successful defense against the alleged and conceded trespass, based on the ground of a dedication to 17 , . ■ the public ot Bowling avenue as a highway, were very formidable. It is observed in Angell’s work on Highways, that “ a primary condition of every valid dedication is that it shall be made by the owner of the fee,” and itis remarked by Mr. Justice Goldthwaite, in Hoole & Paulin, v. Atty. Gen., 22 Ala. 190, that “ it is a self-evident proposition that a dedication, or gift of land for public uses, can only be made by the owner or proprietor.” C. J. Abbott observes in Wood v. Veel, 5 Barn. & Ald. 456, that “nothing done by the lessee, without the consent of the owner of the. fee, would give- the right of way to the public.” ~We have not met with any judicial decision, either in this country or England, which conflicts with this elementary principle. The owners of lot 16, through which Bowling avenue was located, were Mrs. Singleton and her children. Our statute provided a mode by which their land could
But if he had an absolute interest, .as is contended, in that portion which his deceased daughter could transfer, that would only make him a tenant in common with his wife and surviving children. Can one out of six or eight tenants in common destroy the title of his co-tenants by acts and deeds amounting to a dedication ? The reason upon which the principle is settled that the owner can alone make the dedication, would seem to exclude any such assumption.
We have a great number of decisions by this court on this subject, but in all of them, so far as I have observed, question now under consideration, did n°t arise. In all of them the dedication relied on was one produced by act or deeds of the owner, and of an owner sui juris, and surely acts of infants or married women have never entered into the consideration of the court as tending to deprive them of their property. It would not merely be in conflict with the common law which we adopted in 1816, but in conflict with our statutes, which specifically point out how the interests of persons so situated are to be affected. In this case it does not appear that Mrs. Singleton ever executed any deed relating to the subject, and certainly it is not shown that her children did. There is evidence to show that she and they 'traveled over this road constantly, and admitted that it was a public highway, but surely it will not be seriously contended that such acts and declarations divested them of their title. Had they been sui juris, competent to divest themselves, we might have been of opinion that their acts would have that effect. But some of them were married
As to the act of the county court in declaring Bowling avenue to be a public highway, it was obviously a mere nullity. It was made on the petition of one „ . . ,. , , out of fourteen .proprietors ox the land through which it ran, and if it had been made on the petition of all those who signed the deed appropriating thirty feet of their lands to a private road to and from Hannibal, it would leave the question as to the rights of Mrs. Singleton and her children untouched. That question the county eoui’t could not decide.
It appeal’s clear that Mrs. Singleton and her children owned this land until the conveyance to the plaintiffs, and consequently, that the plaintiffs had a right to inclose it, which they did. The instructions of the court in regard to damages, seem to be very fair, and the damages found by the jury were very moderate. We see no reason, therefore, to revei’se the judgment, and it is accordingly affirmed.
Affirmed.