17 Mo. 184 | Mo. | 1852
delivered the opinion of the court.
This was an action begun by petition in the name of McKee, against the city of St. Louis, for appropriating 60 by 187 feet of ground in opening Jefferson, or north First street. The object of the suit was to recover the value of the ground appropriated by the city.
The defence admitted the appropriation of the ground by an ordinance of the city authorities, but stated that it was done after an assessment of damages in the manner prescribed by the charter in such cases ; and that the damages so assessed the city was willing and offered to pay. As a further defence, the answer stated that, in August, 1881, and before and since, a public highway covered the ground now claimed; that the said highway had been used without objection, and with the knowledge and consent of the owner of the ground across which it extended, and that before or at'the time of his purchase, stones or other monuments were set up, indicating the width of the highway.
The proceedings for the condemnation of the land show that, in August, 1841, in pursuance to the provisions of the charter, under the direction of the mayor, a jury was summoned to assess the damages to the plaintiff, ffm. Wadding-ham, and the representatives of Edward P. Wheeler’s estate, by the extension of the street through their property. The first
Thomas J. Payne, from whom the plaintiff purchased, testified that he had contracted with McKee and Wheeler to convey the land to them, when he should obtain a title from his co-tenants ; that he came to St. Louis in the spring of 1831, and informed McKee and Wheeler that he had acquired the title, and proposed to them to lay off the tract into town lots. They agreed to lay it off according to the plat afterwards made by Brown, which was attached to the deed of the witness (Payne) to McKee, instead of complying with the title bond; that Brown made the survey and plat for the purpose of enabling him to convey according to the agreement, and the plat was made with the consent of McKee and Wheeler, and the land was sold according to the plat. Brown placed stones, at the time of the survey, on the margin of the proposed street, thus :
Payne, Wheeler and McKee were all present when the sur"vey was made and the stones put up. The stones were put up to indicate the width and position of north Main street. The land was laid off accord- . ing to the plat, by consent of Wheeler, McKee and Payne, (the witness,) and the street was laid out to correspond with north Main street. Witness sold land above and below, according to the plat. At the time of the sale to plaintiff, witness owned land north and above the land sold to McKee, and was concerned that Main street should be extended north and through plaintiff’s land. The ground covered by the street was included in the conveyance, because
There was a judgment for the plaintiff for thirty-eight hundred dollars, the value of the land.
An assessment thus made must be regarded- as a separate inquest for each owner of the'land over which the street passes. No right can result to an owner to disturb the inquest, blit so far as it concerns himself, because the damages accruing to others have been joined in-the same estimate and assessment. Because one owner is dissatisfied with an inquest, that is no reason for presuming that all the others may be. If all the owners of the land over which a street may pass acquiesce in an inquest ascertaining their respective damages, save one, it would be strange, if his objection should have the force to overturn the assessment as to all. There is nothing in the relationship between 'the owners, nor any thing in the nature of the proceedings, which would warrant such a course. McKee was 'a party, and present at the assessment made on the 16th July, 1842. The fifth section of .the sixth article of the charter of the city of St. Louis provides, that the mayor shall have power, for good cause shown, within ten days after any inquest shall have been returned to him, to set the same aside and
If this was the state of his rights with regard to the inquest, it cannot be maintained that they, could be restored or revived by the subsequent proceedings, to which he was a party, and which were set aside by the Circuit Court.
Thus it appears that Payne 'laid off the street and actually dedicated the ground, before he conveyed to McKee, and McKee not only purchased with a full knowledge of all these facts, but under a pledge that he would not obstruct the street. Land may be dedicated without a deed.
The other Judges concurring, the judgment will be reversed.