Opinion
No. 40223.
May 27, 1948. Rehearing Denied, June 14, 1948.
1. BOUNDARIES: Evidence: Survey Without Probative Force. A survey which is not definitely shown to have commenced from a corner established by the government or, if lost, reestablished in accordance with statutes, is of no probative force.
2. BOUNDARIES: Evidence: Copy of Ancient Plat Improperly Excluded. Where the originals of an ancient official plat of the City of Jefferson were no longer in existence, probably because of the destruction by fire of the state capitol and the Cole County court house, a copy bearing the date "1849" and in use in the office of the recorder of deeds for many years was admissible in evidence to show the boundaries of lots conveyed by reference to the original plat.
3. BOUNDARIES: Dedication: Plat as Dedication to Public: Construction. A plat of the City of Jefferson authorized by the General Assembly which shows lots and the boundaries of streets, alleys and other public places, when followed by sales of lots by number with reference to the plat, constituted an effective dedication of said public places for the use of the public. Plats must be fairly construed and all doubts will be construed most strongly against the dedicator. The court is not authorized to add a line to the plat which was not placed there when the original survey was made.
4. QUIETING TITLE: Boundaries: Dedication: Lot Lines as Boundary: Strip Along Creek: Title of City Quieted. The lot lines shown on the plat constitute the boundaries of the lots and the title of the city is quieted to the platted strip along the creek.
ELLISON, J., concurring in part.
5. QUIETING TITLE: Boundaries: Uncertain Status of Plat. A verified motion for rehearing claims that there are errors in the plat. The case should be reversed and remanded for a new trial to determine all questions as to the correctness of the plat.
CONKLING, J.; dissenting.
6. BOUNDARIES: Evidence: Plat Inadmissable. There was not sufficient evidence to admit the plat as secondary evidence. And the ancient document rule does not apply to what is claimed to be only a copy of an ancient document.
7. BOUNDARIES: Creek Bed Not Reserved: Center of Creek as Boundary. Since neither the plat nor any instrument of title expressly reserves the strip along the creek, the boundaries of the lots extend to the center or thread of the creek.
Appeal from Cole Circuit Court. — Hon. Sam C. Blair, Judge.
REVERSED AND REMANDED ( with directions).
Paul Ewing Allen and D.F. Calfee for appellant.
(1) Defendant's Exhibit D, the old map of the City of Jefferson, dated 1849, is an ancient document and as such was entitled to be admitted in evidence. It was established beyond any reasonable doubt that it was over forty years old, and every indication is that it was made in or about the year of the date it bears, 1849. It was found in proper custody, the Office of the Recorder of Deeds of Cole County, Missouri; it does not have a suspicious appearance, but on the contrary bears every evidence of being genuine and authentic, and other attendant circumstances fully corroborate its genuineness. The court erred in refusing to admit it in evidence. Davis v. Wood, 161 Mo. 17, 61 S.W. 695; Anderson v. Cole, 234 Mo. 1, 136 S.W. 395; Brown v. Weare, 152 S.W.2d 649; Sharp v. Richardson, 182 S.W.2d 151; Spencer v. Levy, 173 S.W. 550. (2) And said map (Defendant's Exhibit D) was admissible in evidence as secondary evidence, the original map having been lost or destroyed. In this respect public records do not differ from private documents. 22 C.J., sec. 1317, pp. 1029, 1030; 32 C.J.S., sec. 827, pp. 755, 756; 7 Wigmore on Evidence, pp. 594, 595, and 596, Sec. 2143, Title, Authentication of Documents by Age. (3) The survey and platting of the City of Jefferson, and the sale of inlots and outlots by reference to said plat, by the State of Missouri, acting by and through the General Assembly and the duly authorized agents of the state, constitute a dedication to the public use of the streets, alleys, parks, commons, and all pieces or tracts of ground left open for common or public use, including creeks, and the title to said streets, alleys, parks, commons, and other tracts was thereby vested in the City of Jefferson; and the court erred in finding and holding that the defendant city had no interest of any kind in the bed and banks of Weir's (Wares) Creek. 26 C.J.S., pp. 76, 78, 82, Secs. 22, 23; Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 41 S.W.2d 945; Town of Otterville v. Bente, 240 Mo. 291, 144 S.W. 822; Sharp v. Richardson, 182 S.W.2d 151. (4) With reference to establishment of the Permanent Seat of Government of Missouri, the grant of land by act of Congress, acts of the General Assembly providing for the laying out of a town thereon, the sale of lots in said town, and other acts incidental thereto, see case of Lessieure v. Price, 12 Mo. 14, where the history of the location of the Permanent Seat of Government at Jefferson City is set out, in part at least, by recital of matters offered in evidence threin. See also 1 Missouri Territorial Laws, p. 859, Act approved, January 11, 1822; Laws 1821-2, p. 56. (5) Journal of House of Representatives of Missouri, on November 18, 1822, shows plat of City of Jefferson accepted; and Journal of Senate on December 18, 1822, shows approval of said plat, and on same day, December 18, 1822, it was ordered by the Senate that a copy of said plat of the City of Jefferson, Missouri, be deposited in the Office of the Secretary of State, a copy of same be recorded in the Office of the Recorder of Deeds of Cole County, and that a copy of said plat be furnished the Trustees of the City of Jefferson. See further, An Act to incorporate the inhabitants of the City of Jefferson; Laws of 1838-39, p. 306 and following. (6) All property, real and personal heretofore belonging to the inhabitants of the City of Jefferson, or the trustees thereof in their corporate capacity, shall be and is hereby declared to be vested in the corporation, etc. Sec. 19, p. 309, Laws 1938-39. An Act to amend and reduce into one act the several acts and parts of acts incorporating the City of Jefferson, approved March 27, 1872. Laws 1871-2, p. 397 et seq. (7) All property and property rights, immunities and privileges, now held and possessed by the Mayor, aldermen and citizens of the City of Jefferson, under and by virtue of the present charter of said city, and the amendments thereto, are hereby transferred to and fully vested in the City of Jefferson, etc. Sec. 33, p. 396. (8) The title to Inlots 295 and 296 in the City of Jefferson, Missouri, emanated from the State of Missouri by and through Commissioners' Deeds executed on behalf of the State by the Commissioner of the Permanent Seat of Government, in which said inlots were described simply as Inlot 295 and Inlot 296 without any other description, either by metes and bounds or otherwise. Therefore, the plat of the City of Jefferson, as originally surveyed and platted, controls so far as the limits and boundaries of said inlots are concerned; and the court erred in rendering judgment for plaintiffs for the land in controversy, said land not being within the limits of Inlots 295 and 296 as shown on the plat of Jefferson City. Campbell v. Wood, 116 Mo. 196, 22 S.W. 796; Dolde v. Vodicka, 49 Mo. 98. (9) In an action to quiet title to land plaintiff must prevail solely upon the strength of his own title, and not upon the weakness of the title of his adversary. Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39; Brown v. Weare, 348 Mo. 135, 136 A.L.R. 286, 152 S.W.2d 649; Auldridge v. Spraggin, 349 Mo. 858, 163 S.W.2d 1042; Gee v. Bullock, 164 S.W.2d 281, 349 Mo. 1154; Sharp v. Richardson, 182 S.W.2d 151.
Lewis Hord Cook, H.P. Lauf and John O. Bond for respondents.
(1) Respondents made a strong case of ownership of the land in dispute by proving they held the land through a chain of conveyances conveying all of it to them; by showing they held possession of the land and had constructed Forty Thousand Dollars ($40,000) worth of improvements thereon; and by showing that appellant had virtually confessed ownership to the disputed land to be in their predecessor in title in an injunction suit; and since the appellant failed to show any title whatsoever in itself with or without the aid of Exhibit D, the plat it relies on, the court's decree necessarily had to be in favor of respondents and against appellant. Deal v. Lee, 235 S.W. l.c. 1055; Maynor v. Land Timber Co., 236 Mo. l.c. 728, 139 S.W. 393; Graton v. Land Lumber Co., 189 Mo. l.c. 332, 87 S.W. 37; 51 C.J., Quieting Title, sec. 235, p. 257. (2) Since it is undisputed that the State of Missouri conveyed to purchasers, all land to the bank of Weirs Creek, the law presumes the water course was included so that each purchase adjacent to the creek actually owned to its center. Whiteside v. Oasis Club, 187 S.W. 27; Wright Lumber Co. v. Ripley County, 192 S.W. 996, 270 Mo. 121. (3) Exhibit D, the plat offered by appellant was not admissible as an ancient document. It did not purport to be the original. 3 Jones, Commentaries on Evidence (2d Ed.), secs. 1118, 1119, 1120, 1121, 1122; Bell v. George, 204 S.W. 516, 275 Mo. 17; Art. I, Chap. 82, R.S. 1939.
Proceeding to quiet title, instituted by Richard A. Schell and Phyllis F. Schell against the City of Jefferson, Missouri, a municipal corporation, the land being described as follows:
"Parts of Inlots Nos. 295 and 296 in the City of Jefferson, Missouri.
"Beginning at a point on the easterly line of Inlot No. 296 and 90 feet southerly from the northeasterly corner of said Inlot on Walnut Street, thence southerly, along said easterly line, 108 feet and 9 inches to High Street, thence westerly, along said High Street, 208 feet and 9 inches to the southwesterly corner of Inlot No. 295, thence northerly, along the westerly line of said Inlot No. 295, 108 feet and 9 inches, thence easterly, parallel with High Street, 208 feet and 9 inches to the point of beginning."
The City's answer alleged that inlots Nos. 295 and 296 are fractional inlots in said City, lying north of and adjacent to a strip of ground on the north side of Weir's (Ware's) creek; and that the land north of said creek and south of the boundaries of said inlots Nos. 295 and 296, including the creek, as shown on the plat of said City, is the property of the City in fee simple.
Plaintiffs' metes and bounds description shows inlot 296 east of inlot 295 and extends the east line of inlot 296 south along the west line of Walnut street to High street, the north line of High street being 12 feet and 3 inches north of the south bank and in the bed of Weir's creek. The controversy involves the south line of said inlots; i.e., whether it is as described in plaintiffs' petition or as shown on the plat of the City.
The court denied the City's plea and, on the theory the City was a stranger to the title and plaintiffs made a prima facie case by showing possession (Hunter v. Weil (Mo.), 222 S.W. 472, 475 (III); 51 C.J. 257, sec. 235; 44 Am. Jur. 37, sec. 44), adjudged the title to the land described by metes and bounds in plaintiffs. The [432] City appealed. The trial was to the court and our review is de novo on the whole record "as in suits of an equitable nature." Laws 1943, p. 387, sec. 114.
The Congress of the United States provided in the act authorizing Missouri to become a state: "That four entire sections of land be, and the same are hereby, granted to the said State, for the purpose of fixing their seat of government thereon . . .," the selection to be in accord with the direction of the legislature of the State. The conditions of this act of Congress were accepted and Missouri was thereafter admitted to statehood.
3 U.S. Stat. 547, sec. 6, "Fourth," Enabling Act, March 6, 1820; R.S. 1845, p. 21; 1 Mo. R.S. 1939, p. 56c; 28 Mo. R.S.A. 218.
Ordinance of Acceptance, July 19, 1820; R.S. 1845, p. 22; 1 Mo. R.S. 1939, p. 57c; 28 R.S.A. 220. See 3 U.S. Stat. 645; 28 Mo. R.S.A. 223; 1 Mo. Terr. Laws 758; 28 Mo. R.S.A. 224; 3 U.S. Stat. 827 (Appendix II); 28 Mo. R.S.A. 226.
The Missouri constitution of 1820, Art. XI, directed the first General Assembly of Missouri to appoint Commissioners to select the aforesaid four sections of land, and to "lay out a town thereon under the direction of the General Assembly." The General Assembly, conforming to said mandate, appointed Commissioners to select a suitable location for the permanent seat of government of the State and the aforesaid four sections of land. Proceedings followed resulting in the selection by the Commissioners and the acceptance by the General Assembly of the four sections of land and the location of the permanent seat of government of the State thereon. An act of January 11, 1822, provided that, under the direction of the Commissioners aforesaid, a town, to "be called `City of Jefferson,'" be laid out by a surveyor, appointed by the Governor, on the four sections aforesaid, the said town to contain "at least one thousand lots" in dimensions to be determined by the Commissioners, with a principal street between 100 to 120 feet and other streets of not less than 80 feet in width, with alleys 20 feet wide, and that the remainder of said sections be laid out "into lots of five, ten, twenty and forty acres," et cetera; said Commissioners to report to the next General Assembly. The Commissioners made their report to the General Assembly, "accompanied by a plat of the City of Jefferson.'" By joint resolutions the General Assembly directed that said report, with other documents on the subject, be deposited in the office of the Secretary of State for safekeeping; and also, on December 19, 1822, directed the Secretary of State "to cause the plan of the City of Jefferson to be made out on parchment, and deposited in his office, . . . and also to furnish the trustees of the City of Jefferson, as soon as may be, with a copy of the plan of said City . . ."
R.S. 1845, p. 42; 28 Mo. R.S.A. 243.
1 Terr. Laws 649, 773; Acts approved November 16, 1820, and June 28, 1821.
1 Terr. Laws 825; approved December 31, 1821. See also 1 Terr. Laws 780.
1 Terr. Laws 859.
House Journal, 2d General Assembly, Monday, November 18, 1822, p. 62; Senate Journal, Id., December 18, 1822, p. 130.
1 Terr. Laws 984.
1 Terr. Laws 985.
An act of December 19, 1822, appointed named persons "Trustees of the said City of Jefferson" and authorized them to offer for sale to the highest bidder 200 lots in said City, and vested them with other powers and duties. An act of February 12, 1839, incorporated the City of Jefferson and authorized the City authorities "to open and keep in repair streets, avenues, lanes, alleys, drains and sewers, and keep the same clean" et cetera; and vested "all property, real and personal, heretofore belonging to the inhabitants of the City of Jefferson, or the trustees thereof in their corporate capacity . . . in the corporation . . ." An act of March 27, 1872, codified the several acts respecting [433] the City of Jefferson and was to like effect as the act of February 12, 1839.
1 Terr. Laws 1018. Among other acts respecting lots in said City see 2 Terr. Laws 24, 193 and 440, the first mentioned authorized the payment of $10 for drawing and painting a plat of said City.
Laws 1838-9, pp. 306-311, secs. 12, 13, 14, 19.
Laws 1871-2, pp. 389-396, see secs. 9, 33.
Plaintiffs introduced two deeds from Commissioners of the Permanent Seat of Government. One, recorded August 26, 1844, conveyed "inlot 295"; the other, recorded August 8, 1840, conveyed "inlot 296." Each conveyance recited it was made "under the act of General Assembly approved February 6, 1837." Said act required said Commissioner to protect "the streets, alleys, avenues, public schools and commons within the limits of the" City of Jefferson. It authorized said Commissioner to sell certain inlots and outlots to be selected indiscriminately in said City, to issue certificates to the purchasers "describing the number of the lot, if an inlot;" and if an outlot, its number and number of acres therein; and, upon payment, a deed conveying the fee simple title. Laws 1836-7, p. 31, secs. 4, 8, 16, 17.
The inlots continued to be conveyed by number only until December, 1898, when the Jefferson City Building and Loan Association executed a quitclaim deed releasing a deed of trust against the lots and added to the numbers of the inlots the metes and bounds description appearing in plaintiffs' petition. All subsequent conveyances have included this metes and bounds description.
Plaintiffs next offered portions of the files in a suit instituted in 1928 by the City of Jefferson against John and Etta Riner, the general object and purpose of which was to restrain said defendants as owners of real estate, described the same as in plaintiffs' petition herein, from erecting a concrete wall thereon affecting the flow of the water in Weir's creek. There was no judgment on the merits in the case. It was disposed of by stipulation wherein the City agreed to pay the defendants and their attorney $250 and a record entry showing the filing of said stipulation. These proceedings were admitted on the theory the original deeds in describing the inlots by number only were ambiguous and the description given by the City in the injunction suit might aid in a proper construction of said deeds. They were not admitted upon the theory and we understand it is not contended that the City Counselor might bind the City by allegations in a pleading to the extent of surrendering the rights of the public in and discharging the City's obligations with respect to real property if such allegations be contrary to the facts.
Plaintiffs also introduced deeds (three) in their chain of title from the Riners, plaintiffs acquiring their title in November, 1944. Mr. Schell testified plaintiffs had constructed improvements worth $40,000 on the inlots and that (disputed by the City) they have claimed ownership and possession of all the land since they received their deed.
F.E. Ross, county engineer and surveyor of Cole county, Missouri, testified that he made a survey of the land involved from the Schell deed and that his plat, exhibit 12, reflected accurately the boundary lines as described in said deed. Witness testified he used for a starting point a bolt "I think it is in the concrete wall at the corner of Kline's building on Main street and Walnut, it has been there for several years, and the mark on the curb on the south side of High street for the west line of Walnut" to run the line on Walnut street. He gave the dimensions of the "ordinary" inlots around the main part of the City as 198 feet 9 inches by 104 feet 4½ inches. Asked: ". . . you made that survey [referring to exhibit 12] from what?
"The Witness: Mr. Schell's deed.
"Q. You didn't go to any City plat or any plat of any kind?
"A. I did not."
We have said in a number of cases: "Evidence of a survey which is not definitely shown to have commenced from a corner established by the government or, if lost, reestablished in accordance with statutes, is of no probative force." Landers v. Thompson (#40,209, 11-10-47), 356 Mo. 1169, 205 S.W.2d 544 citing cases; Diers v. Peterson, 290 Mo. 249, 258, 234 S.W. 792, 794[4]; Klinhart v. Mueller (Mo.), 166 S.W.2d 519, 523[1]. See also: "A surveyor who attempts by parol evidence to establish a survey would have to show the same facts by parol that would have to be shown on [434] the plat." Pioneer Cooperage Co. v. Bland, 228 Mo. App. 994, 1001, 75 S.W.2d 431, 435[4].
The Ross survey starts and ends with the metes and bounds description in the Schell deed. Its correctness in this respect is not contested; but, under the authorities mentioned, it is not sufficiently definite to have probative value respecting the issue for determination between the litigants.
We think the court erred in excluding the City's exhibit D, an ancient copy of a plat of the City of Jefferson, as under the instant record there is no method of legally ascertaining the location or the boundaries of inlots 295 and 296 (or other inlots of the City) unless recourse be had to exhibit D or some plat based thereon. This is essential to truly establish the lines, courses and distances from some point officially set by a United States Government survey. No one knew who set the "bolt" in the corner of Kline's building or the "mark" on the High street curb used by Ross, or how said points were established. The original official plat of the City accompanied the report to the General Assembly of the Commissioners appointed to lay off the inlots of the City. The Secretary of State was required to have said plat of the City made out on parchment, to deposit it in his office and to furnish a copy to the trustees of said City. (Notes 7, 8, 9 supra.) These plats were the result of specific official acts of the General Assembly and would be competent evidence. The City established that none of said plats was now in existence in the office of the Secretary of State or in the office of the City Clerk of said City, and also that no official plat of said City was in the office of the Recorder of Deeds of Cole county, Missouri. Evidence, however, was adduced establishing that said exhibit D had been hanging on the walls of said Recorder's office, being framed and under glass, continuously for approximately twenty years according to the present Recorder of Deeds, and for at least twenty-six years according to another witness. Other evidence warranted the direct inference that it had been in use for forty years or more. It bears the date "1849." It shows McCarty street in said City as Van Buren. There was testimony that it had been drawn on paper and mounted on cloth and now is yellow with age; "a very old document." One witness was of opinion it was of the date shown on its face: 1849. The name of Van Buren street in the City of Jefferson was changed to McCarty street by an act of the General Assembly in 1857. Laws 1856-7, p. 306. Said plat had never been inventoried as an official document or recorded by any recorder. There are no measurements on it. However, it was shown to be drawn to scale and to be an accurate plat of the City as it now exists and has existed. It has been used by officials, surveyors, abstracters, and others interested in the title to real estate within the City. Subdivisions and additions to the City conform to this exhibit D. It is the oldest known plat of the City of Jefferson and is the basis for subsequent plats of property within the City. The record, discussions of counsel and some evidence on the fact, establishes that Capitol buildings of the State and the courthouse of Cole county, Missouri, had been destroyed at times by fire. We have hereinbefore set forth the acts of the General Assembly judicially establishing the existence of an original plat of the City of Jefferson. Many years have elapsed since the making of the original and the official copies. They are not now available, having been lost or destroyed. Plaintiffs' title has its origin in the deeds describing the lots according to said plats. In these circumstances, especially with plaintiffs' as well as defendant's rights ultimately founded upon the plat of the City of Jefferson, exhibit D was admissible as secondary evidence. Studebaker Mfg. Co. v. Dickson, 70 Mo. 272; Finney v. St. Charles College, 13 Mo. 266, 271; 32 C.J.S. 771, sec. 842, also p. 755, sec. 827. A somewhat similar situation existed in Westbrook v. City of Jackson, 165 Miss. 660, 145 So. 86, with respect to the "Smith map" therein mentioned and considered competent. See Hedrick v. Hughes, 82 U.S. (15 Wall.) 123, 21 L.Ed. 52; Brown v. Weare, 348 Mo. 135, 141[3], 152 S.W.2d 649, 653[6] and cases cited; Sharp v. Richardson, 353 Mo. 138, 182 S.W.2d 151. Plaintiffs refer on this issue to [435] authorities which broadly state that "the law relating to the admission in evidence of ancient documents has no application to" an instrument which does not purport to be the original. 3 Jones, Evidence, 2d Ed., 2062, secs. 1118-1122; Bell v. George, 275 Mo. 17, 34(VII), 204 S.W. 516, 520[6], citing McCleery v. Lewis, 104 Me. 33, 70 A. 540, 19 L.R.A. (N.S.) 438. Bell v. George and the Missouri cases there cited are also sufficiently distinguished from the instant case in that in each there was no showing, as here, that the original or other competent copy of the document had been lost or destroyed and was unavailable, a condition to the admissibility of any copy as a substitute for the original as the best evidence. 7 Wigmore, Evidence, 3rd Ed., 594, sec. 2143. See observations by the author of Bell v. George in Laclede L. Imp. Co. v. Goodno (Mo.), 181 S.W. 410, 413[6-8]. McCleery v. Lewis is criticised by Wigmore, Id., p. 598.
Plaintiffs say even with the plat in evidence they are entitled to prevail because it shows the south boundary of said inlots to be the north bank of Weir's creek and therefore their title extends to the "thread" of the creek, the grant from the State containing no reservation. Whiteside v. Oasis Club (Mo.), 187 S.W. 27, 30[3]; Wright Lumber Co. v. Ripley County, 270 Mo. 121, 128(I), 192 S.W. 996, 998[1]. The trial court considered inlots 295 and 296 separate and apart from the rest of the plat and taking the plat as in evidence reached a like conclusion. We find no fault in the holdings of the cited cases or others reaching a like result on similar facts. There is no call in plaintiffs' deed of the water course constituting the boundary as in Whiteside v. Oasis Club. We understand the usual situation involving meander lines along a nonnavigable river existed in Wright Lumber Co. v. Ripley County, the court stating: "Where it [the United States] sells and conveys such lands by the government subdivisions, its patents convey all the land between the meander line on the shore and the middle thread of the river, unless previous to the issuance of the patent it has surveyed such lands as governmental subdivisions, or has expressly reserved them when not surveyed."
The dimensions of the inlots in the City of Jefferson were determined by the Commissioners appointed in 1822 but the dimensions of the outlets, the streets, and alleys were determined by the General Assembly. (Notes 6, 7.) The plat of these inlots and outlots was accepted by the General Assembly. (Notes 8, 9.) This plat established the boundaries of the inlots, the streets, alleys, and other public places within said City. The acts of the General Assembly with respect thereto when followed by the sale of the inlots by number with reference to the plat constituted an effective dedication of the public places thereon to the use of the public. Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 821, 41 S.W.2d 945, 949, citing cases; Sharp v. Richardson, 353 Mo. 138, 182 S.W.2d 151; Riverside v. Maclean, 210 Ill. 308, 71 N.E. 408, 66 L.R.A. 288, 293, 102 Am. St. Rep. 164. Consult Annotation, 8 L.Ed. 453. Upon the incorporation of the City of Jefferson, the City became the trustee of the dedicated property for the benefit of the public. The intention of the parties is a controlling factor in construing dedications to public use. Plats "must be construed fairly and reasonably . . .; they are to be contrued as a whole in order that the intention of the party may be ascertained . . .; no part of the plats is to be rejected as meaningless, if it can be avoided, and lines as well as words are to be considered; and all doubts as to the meaning of the plat and any conflict on its face will be construed most strongly against the dedicator. The court is not authorized to add a line to the plat which was not placed there when the original survey was made . . ." 26 C.J.S., p. 132, sec. 49, Plats; 16 Am. Jur. 369, sec. 24; Byam v. Kansas City, supra.
Considering exhibit D as a whole it is our opinion that the lines thereon constitute the boundaries of the various inlots bordering on Weir's creek to the same extent as the lines thereon define the boundaries along the streets and alleys. All inlots on said plat are not uniformly 198 feet 9 inches by 104 feet 4½ inches, the usual size of inlots in the City. None bordering on Weir's creek is rectangular in shape. Some are triangular and platted [436] in such manner as to cut off other inlots on Weir's creek if their lines be extended corresponding to a metes and bounds description as in plaintiffs' deed; and at least one, if likewise extended, would encroach upon a public street of the City. Weir's creek, including its width, is indicated by definite lines on the plat and an excess of land exists between lines defining the creek proper and the lines of the inlots on each side of the creek. Two smaller streams empty into Weir's creek within the territory on which the inlots are platted and in every instance the platted lot lines form uniform rectangles and extend across the lines marking the course of said streams. Such lots include the banks and the beds of these streams; whereas throughout the course of Weir's creek on said plat the lines of inlots bordering thereon do not in any instance extend to or across said creek. Laws of 1837, p. 31, under which plaintiffs' title originated, limited the authority of the Commissioner of the Permanent Seat of Government to the conveyance of inlots by number, i.e., according to the plat of the City. "`Where a recorded plat shows the existence of a street or alley and land is conveyed by reference to such plat, a street or alley is necessarily excluded from the deed. The grantee is charged with notice of the streets and alleys shown by the map.'" Ackerman v. Ryder, 308 Mo. 9, 30(II), 271 S.W. 743, 749[7]. We conclude that the lines on the plat marked the boundaries of the inlots in 1822 and as title thereto passed out of the State, and that these boundaries may not be extended by adding descriptions corresponding with dimensions established generally for inlots in the City.
The judgment is reversed and the cause remanded with directions to adjudge the better title to the disputed area in the City in accord herewith.
The foregoing opinion by BOHLING, C., in Division No. 2, is adopted as the opinion of the Court en Banc. Tipton, Clark, Douglas, Hyde, JJ., and Leedy, C.J., concur; Ellison, J., concurs except as to remand with directions, he believing it should be a general remand; Conkling, J., dissents.
LIMITED CONCURRING OPINION.
My vote concurring in the reversal and remanding of this cause generally, and without directions to enter judgment for the appellant city, is based on the following reasons. In Division 2 the present majority opinion of the court en banc was adopted by all the judges thereof. But respondents' counsel filed a motion for rehearing verified by the affidavit of counsel [as in the case of motions for new trial in the trial courts alleging newly discovered evidence] stating that the so-called "ancient document" plat shows each square block as a square inch, representing 400 feet, and each inlot as of a width of ¼ inch, making it 100 feet wide, whereas the records definitely show each square block is 417.5 feet wide, and each inlot 104 feet, 4.5 inches wide. In other words, as to the square blocks there is an error of 17.5 feet, and as to the inlots one of 4.5 feet. The affidavit further alleges these errors apparently are compensated for by showing the streets wider than they really are.
North and south, the plat covers all the territory between the Missouri River and Atchison Street; and east and west nearest to the River it extends from Clark Street to a point over six blocks west of the mouth of Ware Creek, and thence angles northeasterly, or easterly, back to Atchison Street. The plat includes all the main business district of Jefferson City and the South Side, and a substantial part of the residential section. The principal opinion shows that up to 1898, fifty years ago, inlots and outlots were conveyed by number, but after that by metes and bounds — indicating some uncertainty as to the former descriptions.
I find nothing in the opinion showing that conveyances within the area covered by the plat, and according thereto, have been found correct through the years. Its origin is [437] obscure. Nevertheless the principal opinion admits it in evidence although the trial court rejected it. The statute of limitations does not run against the City. And if the plat is incorrect the consequences may be serious as to much valuable real estate. Because of these facts Division 2 transferred the cause to the court en banc on the court's own motion in order that it might be reargued. I am unable to see that it has been cleared up. While unable to say on the record that the judgment of the trial court should be affirmed, neither do I think it should be reversed outright. In my opinion the cause should be reversed and remanded for another trial, at which these questions may be settled.
I respectfully dissent from the holding of the principal opinion written by Commissioner Bohling and adopted as the opinion of the Court en Banc. If I correctly read the principal opinion, it holds that Judge Blair erred in excluding the purported map or plat (City's Exhibit D), and, upon the basis of that exhibit, decree title to the small parcel of land in question here to be in the defendant City
From a study of the transcript and an examination of the exhibits it is my conclusion that even if Exhibit D be considered as admitted in evidence the City's contentions are without record support.
I agree with the views of the trial judge as expressed in his memorandum opinion filed in the cause and incorporated in the transcript that Exhibit D was properly excluded, and that, if it were considered as admissible and received in evidence, it would not support the City's case.
While Exhibit D purports upon its face to have been drawn by one Erich Stump, and bears the figures 1849, and while it has hung on the wall in the office of the Recorder of Deeds in Cole County for twenty-six years, there is no evidence in the record here that it was made in the year 1849 and no evidence that it is any copy of any 1849 document.
Inlots 295 and 296 were originally conveyed as such Inlots, not fractional Inlots, by the State of Missouri in 1844 and 1840.
There is no evidence of identity of Erich Stump, nor any showing that he was an official or unofficial person. There was no proof under what authority, if any, Exhibit D was made, and no testimony whatever as to its origin. Other than as above indicated there was nothing to establish when it came into the Recorder's Office, who made it, who brought it there, why it was brought there, why it was on the wall, who ordered it to be placed there or why it had never been officially inventoried or recorded in that office as an official document. No figures or scale of measurement appear on the plat to indicate the length or width of any block, Inlot, Outlot, street, or alley. In fact, the Missouri River is shown at the bottom of the plat, when in fact it is north of Jefferson City.
While counsel for the City, in colloquy, asserted their belief in the one-time existence of an original of Exhibit D, a search of the record filed here reveals no proof whatever that any original ever existed. There is no proof that Exhibit D was even a copy of any claimed original, and no proof as to what any claimed original may have tended to establish. It is my view that to rule that Judge Blair erroneously excluded and refused to consider Exhibit D, we are compelled to presume, and without any proof, that merely because the Legislature in 1822 directed such a plat or map to be made, that an original plat or map was in fact made. And from the mere historical facts that upon separate occasions the State Capitol building and the Cole County Court House were many years ago destroyed by fire, I do not think we can presume that there was an original plat in one of those buildings, and that it was destroyed by fire, or that all official records were thus destroyed. The testimony of an official in the office of the Secretary of State and of the Recorder of Deeds that after a search each had failed to find any original map in their respective offices, in my opinion fails to establish that, if an original plat ever existed, it does not now exist somewhere, and that further search may not reveal it. There is no proof as to what any original map might show, if any such ever was in existence. Under this state of the record, I see no ground for the admission of any secondary evidence.
[438] It is asserted in the City's brief that Exhibit D is an ancient document, and, in the alternative, that it is admissible as secondary evidence, it being, it is asserted, a copy of an original lost or destroyed document. Under the ancient document rule certain ancient instruments are held to be admissible under certain circumstances. But that rule applies only to the original ancient document. Exhibit D is not established to be an original at all. The ancient document rule does not apply to any document, however ancient, for which it is claimed only it is but a copy of an ancient document. Jones Commentaries on Evidence (2nd Ed.), Vol. 3, Sections 1118, et seq.; Bell v. George, 274 Mo. 17, 204 S.W. 516; Laclede Land and Imp. Co. v. Goodno (Mo. Sup.), 181 S.W. 410; McCleery v. Lewis, 104 Me. 33, 19 L.R.A. (N.S.) 438; Patterson v. Collier, 75 Ga. 419, 427; Jones v. Morgan, 13 Ga. 515; Ball v. Loughridge (Ky.), 100 S.W. 275; Schunior v. Russell (Tex.), 18 S.W. 404; 32 C.J.S., sec. 746, page 664. I do not think Exhibit D was admissible under the ancient document rule. It is merely contended, but it is not proved, that Exhibit D is a copy.
After study of this record I find that I am unable to agree with the holding of the principal opinion that inasmuch as the Secretary of State was required to have a plat made and deposited in his office that any original plat was actually ever made; or that such original plat, if one ever existed, has been lost or destroyed; or that there exists here any record foundation upon which to admit Exhibit D as secondary evidence. The principal opinion seems merely to assume both the existence and the destruction of an original. I do not believe the courts can indulge any such presumptions. It is my opinion that the facts and that the inferences which the record compels forbid it.
The principal opinion seeks to distinguish our Bell v. George case by stating that in that case "there was no showing, as here, that the original or other competent copy of the document had been lost or destroyed and was unavailable", etc. I am unable to find in this record anything upon which I can presume any original ever existed, or was ever thereafter lost or destroyed.
In any event, neither Exhibit D, nor any instrument of title I have found in the record, expressly reserves to any one any title to any real estate between the southern boundary of Inlots 295 and 296, as those boundary lines appear on Exhibit D, and the thread or center of Weir's Creek, which is only an inland creek, non-tidal and non-navigable. It is my opinion, therefore, as I read the law, that plaintiff's Inlots 295 and 296 extend under the law beyond the line shown on Exhibit D to the center or thread of Weir's Creek and necessarily include therein the land in controversy here. Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176; Wright Lumber Co. v. Ripley County, 270 Mo. 121, 192 S.W. 996; Whiteside v. Oasis Club (Mo. Sup.), 187 S.W. 27; Felder v. Bennett, 2 McMull (S.C.) 44; Gould on Waters (3rd Ed.) 196; Angell on Water Courses, Par. 11,
For these reasons it is my opinion that Judge Blair decided the case correctly. I would affirm his judgment.
ON MOTION FOR REHEARING.
It is further considered and adjudged by the Court that the said cause be remanded to the said Circuit Court of Cole County for a new trial; and that the said appellant recover against the said respondents its costs and charges herein expended, and have execution therefor.