73 Mo. 295 | Mo. | 1880
This is an action of ejectment brought by James A. Reid to recover possession of block No. 9, in that part of Edina, Knox county, laid out by Wm. J. Smallwood, and at his death revived in the .name of the
Both parties claim through W. J. Smallwood. Plaintiff claims title by virtue of a sheriff’s deed executed in 1866 to James A. Reid, at whose suit by attachment against said Smallwood the block of ground in question had been levied upon in 1860 as the property of said Smallwood and was subsequently sold under a special execution which is-_ sued on a judgment rendered in said proceeding. Defendant claims that the title of said Smallwood to said block, long anterior to the levy of said attachment and the sale thereundei’, had passed out of him by reason of his having dedicated the same to public use. In support of this claim defendant offered evidence showing that said Smallwood^ after having entered at the United States land office the-west half of southwest quarter, section 18, township 62, range 11, on the 18th day of November, 1839, laid out on the land so entered, and before the issuance of the patent to him by the government, (which did not occur till 1841,) and platted the town of Edina. On the face of said plat, which was put in evidence, the lots, by size and number, blocks, by size and number, streets, by name and width, and alleys were indicated, including block nine, the subject of this controversy.
The'words “public square” are written across block nine as laid down on the plat, and under the head of “References” number eight on the face of the plat is the following memorandum: “Block numbered nine declared public property* for the purpose of containing the court house, should the town be selected for county seat.” On the reverse side of the plat is the following deed or writing: This indenture made this 18th day of November, A. 1). 1839, between William J. Smallwood, of Lewis county, State of Missouri, of the first part, and the county of Lewis of the other part, witnesseth that; Whereas, the said Jackson Smallwood intends to lay out a town on the west half of the southwest quarter of section 18, in township
[seal.]
W. J. Smallwood.
STATE OF MISSOURI, County of Lewis,
Be it remeinbered that on this 18th day of November, A. D. 1839, before me, J. H. Blair, clerk of the circuit court within and for the said county of Lewis, personally appeared before me, William J. Smallwood, personally known to me to be the person whose name is subscribed to the foregoing instrument of writing as having executed the same, and acknowledged the same to be his act and deed for the purposes therein mentioned. In witness whereof I, J. H. Blair, clerk as aforesaid, have hereunto set my hand and affixed the seal of said court. Done at office in Monticello, at the county aforesaid on the day and date above written.
J. H. Blair, Clerk.
By Thos. J. Hughes, Deputy.
The plat and writing, in form a deed, were filed in the office of the recorder of Lewis county on the same day it was acknowledged. Defendants also put in evidence tending to show that lots around and fronting said block, in consequence of the representations of Smallwood that it was dedicated to public use, sold from four to twenty times more than other lots in the town; also evidence tending to
On the above state of facts the court gave for defendant the following instruction: “The court declares the law to be that the deed and acknowledgment, with the town plat on the reverse side, filed in the recorder’s office on the 18th day of November, 1839, by William J. Small-wood, with the .explanations, marks and designations on the plat, had the effect, when so filed, to pass the fee, simple title of block 9 from said Smallwood and vest the same in Lewis county for public use, and by virtue of said deed and plat said William J. Smallwood and all persons claiming under him are estopped from asserting any claim or right to said block.” The action of the court in giving this instruction, as well as its action in refusing plaintiff’s instructions embracing a theory of the case in direct opposition to that contained in the one given, is assigned, for error. We deem it unnecessary to insert plaintiff’s refused instructions, inasmuch as a consideration of the objections to that which was given for defendant will sufficiently develop the points relied upon by plaintiff*.
Plaintiff’s counsel say that error was committed in giving the said instruction because, at the time the plat of the town of Edina was filed in the recorder’s office of Lewis county, the land on which it was laid out was not
Ralls county, which was organized in 1820, (1 Yol. Terr. Laws, pp. 650, 651,) embraced within its limits the larger part of northeast Missouri, and in-eluded within its boundaries the territory out of which, among others, the counties of Marion, Lewis and Knox were subsequently carved. By section 39, vol. 1, Statutes 1825, p. 242, the boundary of Marion county thereafter to be created was defined and outlined, and on the 23rd day ofr December, 1826, by sections 1, 2 and 8, 2 volume Territorial Laws, page 90, Marion county was created, and “ all that part of the territory lying west and north of the county of Marion formerly included in the county of Ralls,” was attached'to the county of Marion for all military, civil and judicial purposes. The territory thus detached from Ralls and attached to Marion county included the territory composing the present counties of Lewis and Kuox. In January, 1833, Lewis county was organized, and by section 6, volume 2, Territorial Laws, page 308, “ all that portion of country lying north and west of. said county of Lewis, which has heretofore been a part of Marion,” was attached to the county' of Lewis. The territory thus attached to Lewis embraced what is now the county of Knox, and also the land on which the town of Edina was laid out. From this history of the organizations of these counties, it clearly appears that said town at the
The fact as to whether said plat was acknowledged by Smallwood, under the pleadings, cannot be questioned, because the replication admits “ that said Smallwood laid out and platted the west half of section 18, township 62, range 11, and on the 18th day of November, 1889, made and acknowledged a plat of the same, wherein he laid out and designated the lots, blocks, streets and alleys, and, amongst others, the said block No. 9, and which purported to convey to Lewis county the said streets and alleys and said block 9 for public use.”
The objection that there was no acceptance by the county of the dedication, has no application to a statutory dedication, when the statute declares that the plat, when acknowledged and filed with the recorder, shall be deemed sufficient -to vest the fee in the county in which such town lies. In such cases acceptance on the part of the public is dispensed with, and in this respect a statutory dedication differs -from a comnjon ■law dedication. It differs also “in its mode of operation, for the estate vests in the public by conveyance or grant; whereas, at common law a dedication, in cases where there is no express grant to á grantee upon consideration, operates by way of estoppel in pais of the owner rather than by a grant or transfer of an interest in the land.” 2 Dillon Munic. Corp., § 491.
It-thus appearing that the plat of the town of Edina was acknowledged and filed in the office of the recorder of Lewis county, and that the land on which it was laid out was in territory attached to said county, these facts, under section 4 of the Statutes of .1835, page 599, were sufficient to vest the fee of such parcels of land as were ■expressly named or intended for public use in Lewis county in trust for the uses and purposes thereiii expressed, named
It is argued by counsel that the only public' use for which the block in question was dedicated by Smallwood, was that a court house might be built thereon . _ _. ° m the event ot itama becoming a county seat, and said block not having been appropriated to that use, that, therefore, the title thereto revested in Smallwood, or his grantee. This position, we think, is not maintainable. It could scarcely be urged that if Edina had never become the county seat of Knox county the said block would cease to be public property, and the public be deprived of its use as a public square, and yet this would be 'the logical result of the argument. The construction contended for as to the effect of the words used in the eighth memorandum is too restrictive, and is violative of that rule which requires the words used in a grant to be most strongly construed against the grantor. Considering all that appears on the face, as well as the reverse side of the plat together, and regarding the writing on the back, though in form a deed, as being merely intended to make a more formal dedication of the streets, alleys and block in question, than was made either by the words “public square” written across block 9, or by the words contained in reference number eight, “ that block 9 is public property for the purpose of building a court house should Edina be selected as a county seat,” and applying the rule of construction above adverted to, the general public use to which the block in question was devoted cannot be restricted to .the single use of erecting upon it a court house. We think it clear that, if the contingency requiring the erection of a court house in Edina had never happened, the words “public square ” in connection with those used in the writing on the back of the plat, constituted a sufficient statutory -dedication of said block so as to vest the fee in Lewis county for public use generally.