74 Mo. App. 70 | Mo. Ct. App. | 1898
The answer was a general denial. There was a trial in which plaintiff had judgment and defendant appealed.
The rule is different in those states, of which this is not one, where on executing a plat pursuant to the statute the entire fee in the street passes to the municipality. It is there held that the dedicator and his grantees have no interest in the streets, legal or otherwise, except that in common with the public, namely, the right of passage over them. Snoddy v. Bolen, supra, and cases there referred to. By reference to our statute it will be seen that dedications made in conformity
In Bridge Co. v. Schaubacher, 57 Mo. 582, it was expressly decided that the owner of land joining on a street, alley or public highway owns the fee to the center thereof subject to an easement in the public. Vide Lackland v. R’y, 31 Mo. 180.
In chapter 21, page 518 of Elliott on Roads and Streets, cited by defendant, it is stated that adjoining proprietors on ¿ach side of a highway owns to its center and have the exclusive right to the soil, subject only to the easement of the right of passage in the public and the incidental right of properly fitting the way for use. Subject to this easement they have all the usual rights and remedies therein of the owner of a freehold. In Pemberton v. Dooley, 43 Mo. App. 178, it was said: “It is, too, quite well settled that the owner of the soil on the two sides of the ordinary country road, is the owner likewise of the soil in the road, subject only to right of the public use as a road. ‘The public acquires a right of way with the powers and privileges incident to that right, such as digging the soil, using the timber and other materials found within the limits of the road,
The case of Wellman v. Dickey, 78 Me. 29, was an action for trespass against a highway surveyor. In the course of the opinion the court said: “The plaintiff had planted a row of shade trees along the line of the road, some within and others without the road limits. This he had a lawful right to do, if the public is not thereby obstructed or endangered. The statute, Revised Statutes, chapter 3, section 59, YI, encouraged this method of beautifying and adorning public thoroughfares. Trees so planted are a public benefit and ought to receive public approval, if not official care. They can not be lawfully destroyed without the call of public necessity. R. S., chap. 127, sec. 9. Highway surveyors should xn’°tect and guard
So in the case of Overman v. May, 35 Iowa, 89, an action of trespass by an abutter against the street commissioner of the city of Cedar Falls, the court used language as follows: “The fee, therefore, being admitted to be in plaintiffs, the public has no other right other than to use the premises as a highway, that is, the right of passing and repassing thereon and the incidental right to repair the same and keep it in proper condition for that purpose. There is no evidence, nor is it claimed in argument that the use upon which the easement is claimed even extended beyond this. The title to the land and all the profits to be derived from it consistently with, and subject to the easement, remain in the owner of the soil. He owns all the trees upon it and the mines and quarries under
Referring to the policy of the law, as shown by the statute, cited by Judge Cooley in the Michigan case, and the statutes referred to in the Maine case, it is to be observed that section 7821, Revised Statutes, is practically the same as the statutes of those two states. The evidence presented by the record discloses that the trees in question stood between the curb and the sidewalk and were twelve or fifteen years old and “about the size of a man’s body.” The public use of the street was in no way obstructed or endangered by their presence there. They served not only to ornament and beautify the plaintiff’s abutting property, but the public street as well. During the summer solstice the bright green foliage of the interlocking branches of these trees east a grateful shadow over the plaintiff’s cottages and diminutive lawns lying in front thereof, which added greatly to the comfort and desirability of the latter as homes. According to the authorities already referred to it seems clear to us that the plaintiff had a property right in the' trees, and if the same were destroyed by the defendant in effecting a change of the grade of the street that in the consideration by the jury of the elements of the damage sustained by plaintiff in consequence thereof that it was proper to include therein the destruction of the plaintiff’s trees.
lNconfliIcCangfsspecific. The defendant further objects that the plaintiff’s tiff’s first instruction is inconsistent with the first and second given for it. An examination of these instructions has not convinced us defendant’s objection is well taken. It is quite true that the plaintiff’s is subject to the objection of being somewhat vague and unspecific but this defect was supplied by the hypotheses of those of
The case was well tried and we think there is no just grounds for complaint over the result, and accordingly the judgment will be affirmed.