McGinnis v. City of St. Louis

VALLIANT, J.

Ejectment for a strip of land sixty feet wide and two hundred and fifteen long held by the defendant city as a public street. The petition is in the proper form. The answer is. a general denial, and sets up a common-law dedication.of the land by the plaintiffs’ grantors and themselves to the public for a street. The reply put in issue the facts pleaded as a dedication. The cause was tried by ■court and jury, there was a verdict for defendant and judgment accordingly. There was no bill of exceptions filed. Plaintiffs have brought the cause .here by writ of error for review of the record proper.

I. It is first insisted by defendant in error that, since there is no bill of exceptions it is to be presumed, in support of the verdict and judgment, that the jury found for the defendant on any of the issues joined in the pleadings, including the general denial which would include also of course the denial of the plaintiffs’ title. That position would be undoubtedly correct but for the fact that in pleading the facts constituting the common-law dedication the defendant has shown previous title in the plaintiffs. The defendant must therefore rely upon the sufficiency of its affirmative plea, which if sufficient is sustained by the verdict.

II. The facts pleaded as constituting a common-law dedication are, substantially, that in 1886 the heirs of one Clements owned a tract of land lying parallel with and 215 feet south of the south line of Cabanne avenue which tract they laid off into city lots, streets and alleys; the general course of the tract was east and west between Belt, avenue on the east and Goodfellow avenue on the west, a distance of 2860 feet, and between those avenues for that distance there was no street running from south to north through the tract-except Clara avenue which they had laid off but which ter *196 minated at the northern limit of their tract, 215 feet south of the south line of Cabanne avenue, and the result was that between Belt and Goodfellow avenues for a distance of 2860 feet, there was no access to Cabanne avenue offered the prospective lot purchasers in Clements place, and the owners of the intervening property were unwilling to extend Clara avenue through to Cabanne, or to sell a strip for that purpose to the Clements heirs, because it would have the effect to enhance the marketable condition of the Clements property and put it in competition with that in Cabanne place. To overcome this difficulty the Clements heirs caused a friend to purchase in his name for them, the two fifty-foot lots on the south side of Cabanne avenue, which had blocked Clara avenue, and then they opened Clara avenue to Cabanne by devoting one of the fifty-foot lots so purchased for them, and ten feet off the other, to this purpose, making the strip of 60 by 215 feet which is the land in suit. After this purchase the Clementses caused this strip to be laid off as a street, macadamized and otherwise surfaced it for a roadway, caused a large sign to be put up on it indicating that it was Clara avenue, and sold lots to various persons on the faith of it. After having so sold a number of lots they sold the remainder of the tract and the two fifty-foot lots they had bought from the Oabannes to the plaintiff Joseph E. McGin-nis, who bought with knowledge of all that had been done, and after his purchase he caused the strip in question to be further improved and indicated it as a street by having a granitoid sidewalk constructed in it, and had a plat of the place published and circulated, showing this strip as a part of Clara avenue, and continued to sell lots therein until he had disposed of all except the two fifty-foot Cabanne lots and these he conveyed by quitclaim deed to one Geraldin who quitclaimed them to the plaintiff Nellie McGinnis, who is the wife of Joseph; the conveyance^ Geraldin was simply *197 for tbe purpose of transferring tbe title from tbe husband to tbe wife and was without other consideration. Mrs. McGin-nis took tbe deed with full knowledge of what bad been done as above mentioned by her husband and bis grantors in relation to tbe property, and after her purchase she sold tbe forty feet remaining of tbe Oabanne lots to a purchaser in tbe face ■of tbe open street.

That those facts constitute a common law dedication in which tbe plaintiffs are estopped to assert a claim to tbe property against tbe right of tbe public to use it as a street, is too plain for argument, and indeed there is very little suggested in áppellant’s brief to tbe contrary. But tbe whole effort of the appellants is directed to show that the city can acquire no title to land for a street except by grant or condemnation in tbe manner pointed out by tbe charter.

Tbe authorities cited by tbe learned counsel in support ■of this contention go no further than to sustain tbe proposition that where a city undertakes to condemn property for a street, or when the owner of land desires to subdivide it into lots, streets and alleys, and by tbe mere act of recording bis plat gives to tbe streets and alleys designated thereon tbe character of official highways, tbe methods prescribed in the •charter must be pursued. But they do not contravene tbe doctrine that a man who plats bis lands with streets and alleys designated, and sells lots to people who buy on tbe faith that tbe streets and alleys are in reality as they are represented to be on tbe plat, is estopped to deny tbe truth •of bis own representation, nor do they sustain tbe contention that tbe city may not if it sees fit assume control of tbe land ■so designated.

The common-law dedication of streets and tbe right of tbe city to assume control of them is no new doctrine in this State and it has been laid down in no uncertain terms. [Hannibal v. Draper, 15 Mo. 634 ; Ragan v. McCoy, 29 Mo. 356 ; *198 Rose v. St. Charles, 49 Mo. 509 ; Thurston v. St. Joseph, 51 Mo. 510 ; Heitz v. St. Louis, 110 Mo. 618 .] In the case last cited this court per Sherwood, J.5 compassed the whole doctrine in these words: “Eights acquired by purchasers under a common-law dedication inure not only to their benefit, but to the benefit of all who have occasion to use the streets laid down on the plat; and the sale of lots according to the plat carries with it the covenant that the streets shall forever remain open to the public use.”

Counsel for appellants put great reliance on a provision in section 15, article 6, of the city charter, which forbids the-improvement and repairs by the city of streets not acquired “according to the provisions of this charter and law,” and they argue that that provision is equivalent to forbidding the-city to acquire control of streets otherwise than in the statutory way. But that is a misconstruction of the provision quoted; the term “charter and law” comprehend both statutory and common law. Besides, for the purposes of this suit,, it is no concern of the plaintiffs what authority the city may have in the way of improving or repairing the street; they are suing for possession of the land, and must rely on the-strength of their own title, and not upon any supposed defective power the defendant may have over the subject. It is sufficient if the defendant shows as it has, that if the plaintiffs ever had any title to the land they have estopped themselves from asserting it.

There is no error in the' record and the judgment is-affirmed.

All concur, except Marshall, J., not sitting, having been of counsel.