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St. Louis v. Koch

Supreme Court of Missouri, Division One
Sep 18, 1934
335 Mo. 991 (Mo. 1934)

Summary

In St. Louis v. Koch, 335 Mo. 991, 74 S.W.2d 622 (Sup. Ct. 1934), conditioning the dedication upon payment of damages in condemnation was set aside as inconsistent with the grant itself.

Summary of this case from Haven Homes, Inc. v. Raritan Township

Opinion

September 18, 1934.

NOTE: Opinion filed at May Term, 1934, June 12, 1934; motion for rehearing filed; motion overruled at September Term, September 18, 1934.

1. DEDICATION: Plat. A statutory dedication operates by way of a grant. In construing a plat of real estate, the court should give effect to the meaning and intent exhibited in the outline of the plat.

2. DEDICATION: Plat. Where a realty company subdivided a tract of land into lots and blocks by a plat in statutory form, the northern tier of lots abutting upon a strip of land between the lots and the street, the strip being necessary for street purposes if the street should be widened from sixty feet to one hundred feet, there being no access to such lots except through a rear alley and no streets ran through the strip, the company intended the strip to be a part of the street.

The words written on the strip as shown in the plat "reserved subject to condemnation by Ordinance No. ____" were intended to direct attention to a great highway as an assurance that the strip had been dedicated for street purposes; it was a statutory dedication of the strip for street purposes.

Where the realty company after platting the tract paved the greater part of the strip, constructed a curb and sidewalk and the city installed street lights, water mains and fire plugs between the curb and the sidewalk and the company in selling lots described the tract as surrounded by four great thoroughfares including the Natural Bridge Avenue along which the strip became a part, all this showed a dedication.

3. DEDICATION: Reservation. An attempt to reserve damages for taking a strip of land for widening a street would be inconsistent with the dedication.

The payment of taxes on the strip did not defeat the grant for street purposes.

4. CONDEMNATION: Damages. In a proceeding to condemn for street purposes a strip of land between building lots abutting upon it and a street, where the commission assessed damages to the owner for taking the strip at $10,910 and assessed special benefits against the lots abutting on the strip at $19,000, it, in effect, found that the owner had no interest in the strip.

5. CONDEMNATION: Exceptions: Res Adjudicata. In a proceeding to condemn a strip of land between lots abutting upon it and the street for street purposes, where the commission filed its report and the realty company which had platted the lots and the strip filed exceptions to the report, which the court sustained in part, the company claiming to be owner of the strip, and no exceptions taken to the ruling of this court, it was not res adjudicata when the court at the same term granted leave to the owners of lots abutting on the street to intervene and make a claim to whatever award was made to the realty company; such a ruling left the question of ownership open for determination.

Having dedicated the strip for street purposes the realty company was in no position to challenge the award of damages to the abutting property owners for taking the strip.

Appeal from Circuit Court of city of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

Gustave A. Stamm and Maurice L. Stewart for Hedgleigh Realty Company.

(1) Hedgleigh Realty Company, as vendee in a warranty deed executed by the Hydraulic Press Brick Company after the commencement of the proceedings but before the commissioners' report was filed or the taking of the land completed, is entitled to the compensation allowed for the taking of the land acquired. Kiebler v. Holmes, 58 Mo. App. 119; Hull v. Phillips, 128 Mo. App. 247, 107 S.W. 21; 82 A.L.R. 1063. (2) The ownership of title to the land taken is the issue to be decided in determining the right to the award made for the value of the land taken. Murphy v. Barron, 286 Mo. 410, 228 S.W. 492. (3) The words "reserved subject to condemnation by ordinance No. 30828" appearing on the recorded subdivision plat reserved and retained title to the parcel so designated in the Hedgleigh Realty Company. Fort Smith Van Buren Bridge District v. Scott, 111 Ark. 449, 163 S.W. 1135; Meyers v. Conway Co., 90 Ala. 109, 7 So. 639. (4) A valid common-law dedication does not occur unless there appears an unequivocal intention of the dedicator to dedicate, accompanied with acceptance by the public, or unless there is continuous, adverse use of the land by the public for a period of ten years. Bauman v. Boecheler, 119 Mo. 189, 24 S.W. 207; Kemper v. Collins, 97 Mo. 664, 11 S.W. 245; Carpenter v. St. Joseph, 263 Mo. 715, 174 S.W. 53. (5) An earnest money contract between the vendor and the vendee is merged in the subsequently executed deed between the same parties, which deed then becomes the final understanding of the parties, and the earnest money contract is not admissible in evidence to vary or contradict the terms of an unambiguous deed. Barger v. Healy, 276 Mo. 145, 207 S.W. 499; Davidson v. Manson, 146 Mo. 619, 48 S.W. 635; Bean v. Munger Land Co., 265 S.W. 847; Fulk v. Williams, 37 S.W.2d 513. (6) The description in a deed of the property conveyed by lot and block number in a recorded subdivision incorporates the recorded subdivision plat in the deed the same as if the plat was set forth in full in the deed. Dolde v. Vodicka, 49 Mo. 100; McKinney v. Doane, 155 Mo. 297, 56 S.W. 304; Glayd v. Franck, 248 Mo. 468, 154 S.W. 744; Whitehead v. Atchison, 136 Mo. 485, 37 S.W. 928; Lindsay v. Smith, 178 Mo. App. 193, 166 S.W. 820; Jeffords v. Dreisbach, 168 Mo. App. 583, 153 S.W. 274; Clark v. McAtee, 227 Mo. 192. (7) Benefits can be deducted from damages awarded only when the parcel taken and the remainder benefited are owned by the same person. Charter of City of St. Louis, Art. XXI, sec. 5. (8) The evidence and record made and the rulings obtained by the six exceptors could not inure to the benefit of other lot owners not filing exceptions. McKee v. St. Louis, 17 Mo. 184; State ex rel. v. Muench, 217 Mo. 137, 117 S.W. 25; Scarritt Estate Co. v. Johnson, 303 Mo. 664, 262 S.W. 373. (9) The order of Judge Calhoun, at the June Term, 1929, on exceptions to the first commissioners' report, became res adjudicata at the close of that term so far as the St. Louis Circuit Court was concerned and, until reversed or modified on appeal, Judge Landwehr was not at liberty to decide the same issue differently on exceptions to second commissioners' report at a later term. St. Louis v. Querl Lumber Co., 277 Mo. 167, 210 S.W. 21. (10) Private property cannot be taken for public use without just compensation. Mo. Const., Art. II, Sec. 21; St. Louis, etc., Railroad Co. v. Clark, 119 Mo. 357, 24 S.W. 157.

Charles M. Hay, John T. Hicks and James B. Steiner for City of St. Louis; J.M. Lashly and M.P. Phillips for Julia Investment Company.

(1) The judgment of distribution of the Circuit Court of the City of St. Louis was entered at the June Term, 1931, and no appeal having been taken at the June Term, the judgment is final, and the appeal of Hedgleigh Realty Company taken at the September Term, 1931, of said court should be dismissed. State ex rel. McCaskill v. Hall, 28 S.W.2d 80; Lafayette-South Side Bank Trust Co. v. Siefert, 18 S.W.2d 572. (2) Where by agreement of the parties interested the question of distribution of the fund is submitted to the court for determination as to whether the city of St. Louis will pay the fund into court or credit the same against special assessments levied against other properties affected by the widening, the court has jurisdiction to determine the issue and its judgment thereon becomes final at the term at which made. Murphy v. Baron, 286 Mo. 390, 228 S.W. 496. (3) The question of distribution is collateral and independent of the condemnation proceedings and partakes of the nature of an interpleader suit in which ordinarily the condemning agent has no interest; the money, having been paid into court, stands in lieu of the property and the rights of the parties in the fund are to be determined by the court without regard to the condemning agent. Cassville School Dist. v. McArtor, 286 S.W. 731. (4) The condemning agent was interested in this proceeding because it did not know whether it should pay the money into court or apply the same as the charter provision (Art. XXI, Sec. 5) requires, as an offset against special benefits assessed against property abutting along the new line of Natural Bridge Avenue. Charter, City of St. Louis, Art. XXI, Sec. 5. (5) On the question of distribution, such as Hedgleigh Realty Company sought to raise under its exceptions to the first report of the commissioners, the court was without jurisdiction to pass upon that issue until all the parties interested in the question were before the court by its order of interpleader; the court having failed to have anyone other than Hedgleigh Realty Company before it, its order was ineffective. State ex rel. Scott v. Trimble, 272 S.W. 69; Ross v. Kendall, 183 Mo. 338, 81 S.W. 1108; Const. Mo., Art. II, Sec. 21. (6) At the final hearing on the second report of commissioners, from which the Hedgleigh Realty Company undertakes to appeal, the parties were properly before the court and its order of distribution therein of the fund involved was the proper exercise of jurisdiction and binding upon the parties before it. State ex rel. Scott v. Trimble, 272 S.W. 71; Ross v. Kendall, 183 Mo. 338, 81 S.W. 1108; Const. Mo., Art. II, Sec. 21. (7) Where property is sold and the vendor refers to a street line as a boundary, there is a warranty that the street exists. St. Louis v. Clegg, 233 S.W. 1; Bell v. Walkley, 27 S.W.2d 458. (8) Where by contracts of sale or by acts or conduct or by deeds the vendor has recognized the boundary line of property conveyed to be a street, it inures to the benefit of all who may own lots upon that boundary line. St. Louis v. Clegg, 233 S.W. 1; Bell v. Walkley, 27 S.W.2d 458. (9) Under conveyances in Missouri, where property is bounded by a street, the conveyance carries with it title to the center of the street, and any award which the city might be compelled to pay because of the charter provision requiring it to pay damages as of the effective date of the ordinance, would pass to the purchaser under the deed. Grant v. Moon, 128 Mo. 43, 30 S.W. 328; Neil v. Independent Realty Co., 298 S.W. 363; State ex rel. Scott v. Trimble, 272 S.W. 70. (10) Where a deed refers to "appurtenances," evidence is admissible to show what these are. 22 C.J., sec. 1687; Witte v. Quinn, 38 Mo. App. 692; Mo. Pac. Ry. Co. v. Maffitt, 94 Mo. 60; Snoddy v. Bolen, 122 Mo. 479. (11) The appellant cannot, pending the condemnation proceedings, subdivide the unimproved tract of land of its grantor, a part of which is to be taken in said condemnation proceedings, and sell the lots abutting on the strip proposed to be so taken, and then appropriate to itself the damage award ($10,910) and thereby defeat the plain provisions of the city charter providing for set-off of damages and benefits. City Charter, Art. XXI, Secs. 5, 6; State ex rel. C.B. Q. Railroad Co. v. City of Kansas, 89 Mo. 40, 14 S.W. 575; State ex rel. Highway Comm. v. Jones, 321 Mo. 1154, 15 S.W.2d 338; State ex rel. Highway Comm. v. Hartman, 44 S.W.2d 169; Bauman v. Ross, 167 U.S. 574, 42 L.Ed. 283; R.S. 1929, secs. 11180, 11193; State ex rel. v. Chase, 42 Mo. App. 351; City Charter, Art. XXI, Sec. 4; St. Louis v. Provenchere, 92 Mo. 69; Kemper v. King, 11 Mo. App. 128; Wolfort v. St. Louis, 115 Mo. 144, 11 Mo. App. 128; Bambrick Bros. Const. Co. v. Semple Place Realty Co., 270 Mo. 457. (12) Appellant, in order to show that it had no intention to dedicate the strip of land in question (proposed to be taken in condemnation) by its acts in pais, sets up, among other things, that it paid taxes on the strip of land. If taxes were illegally collected by city officials, the abutting property owners are not thereby estopped to set up dedication. In no event can the payment of taxes by appellant relieve it from its acts in pais. City Charter, Art. XXI, Sec. 6; State ex rel. Koeln v. West Cabanne Improvement Co., 213 S.W. 25; Laclede Christy Clay Products Co. v. St. Louis, 246 Mo. 461; Senter v. Lumber Co., 255 Mo. 606.



Proceeding in condemnation. From the judgment awarding certain lot owners $10,910 damages for a strip of land, the Hedgleigh Realty Company, who claimed to be the owner of said land, appealed.

On April 22, 1920, the board of aldermen of the city of St. Louis enacted an ordinance (No. 30,828) providing for the establishment of a highway one hundred feet wide from North Florissant Avenue westwardly along Palm Street and Natural Bridge Avenue to the western limits of said city.

On November 20, 1920, the city, pursuant to said ordinance, instituted a suit in the circuit court against several hundred defendants to condemn land along the south side of Palm Street and Natural Bridge Avenue.

At said time the Hydraulic Press Brick Company owned the land bounded by Kingshighway on the east, Union Boulevard on the west and Natural Bridge Avenue (then sixty feet wide) on the north. The suit contemplated taking a strip of said land along the south line of Natural Bridge Avenue forty feet in width at Kingshighway and narrowing in width westward to a point five and one-half feet at Union Boulevard. On April 10, 1924, and pending the proceeding in court, the Hedgleigh Realty Company (herein designated the company) purchased from the Hydraulic Press Brick Company fourteen hundred four and one-half feet of said land, bounded on the west by Union Boulevard, on the north by Natural Bridge Avenue (then sixty feet wide), and on the east by the east line of Norwood Avenue, if extended north to the south line of Natural Bridge Avenue (then sixty feet wide).

The company immediately subdivided said land into blocks and lots, naming the subdivision Hedgleigh Park. It did so to sell the lots and realize a profit. The plat of said subdivision was in statutory form. It was approved by the city board having charge of the streets, and recorded on June 6, 1924.

It shows the following: The lots faced north and south with an alley running east and west through each block. The northern tier of the lots in blocks one and eight abutted the strip of land (herein designated the strip) necessary for street purposes, if Natural Bridge Avenue was widened from sixty to one hundred feet. The strip was not divided into blocks and lots. The balance of the land purchased by the company from the Hydraulic Press Brick Company was so divided, which blocks and lots were numbered, as required by Section 11180, Revised Statutes 1929, and the streets named. The streets and alleys running through said balance of the land were "crosshatched" on the plat. The streets running north and south were not outlined as extending through the strip necessary for street purposes, if Natural Bridge Avenue was widened from sixty to one hundred feet. The strip was not "crosshatched" on the plat. However, on the strip as shown on the plat was written the following: "Reserved subject to condemnation by Ordinance No. 30,828." And the acknowledgment of the company to the plat did not mention the strip as dedicated to public use.

The company contends that the word "reserve" as used means "to except, to keep, to hold," and contends that the words "reserved subject to condemnation by Ordinance No. 30,828" written on the plat operated to except from the grant, made by the plat, said strip of land.

A statutory dedication operates by way of a grant. It follows that in construing the plat we should give effect to the intention of the company as manifested by its acts as shown by the plat. In other words, we are not limited to the words written and markings made on the plat. We must give effect to the meaning and intent exhibited by the outlines of the plat.

Having in mind this cardinal rule of construction, we find that the strip was not intended for sale. It was not divided into blocks and lots and the lots for sale numbered as required by statute. We further find that if the strip was excepted from the grant, made by the plat, the owners of the northern tier of lots in blocks one and eight would have no access to said lots except through a rear alley. In other words, they would be without street access to their property. The company could not have so intended. Furthermore, the failure to run the north and south streets through the strip indicates that the company intended the strip to be a part of Natural Bridge Avenue. If so, it was not necessary to give the strip a street name on the plat.

We think said words written on the strip as shown on the plat were intended to direct attention to the location of the subdivision on a great highway, and that the word "reserved" as used was intended as descriptive of the widening of Natural Bridge Avenue, and as assurance that the strip had been dedicated for street purposes as appurtenant to and for the benefit of the owners of abutting lots and the public. Indeed, this is the only reasonable construction that can be given the plat. Furthermore, if the company desired to except the strip from the grant, it could have done so by omitting the strip from the subdivision. We hold that the company made a statutory dedication of the strip to public use for street purposes. We are strengthened in this view by the practical construction given the plat by the company. Immediately after platting the subdivision, it paved the strip to within a few feet of the pavement on original Natural Bridge Avenue. It constructed curbs and laid a sidewalk on the strip. Thereupon the city installed electric lamp standards, street lights, water mains and fire plugs between said curbing and sidewalk. Thereafter the company, in selling the northern tier of lots, used a sales plat which described the subdivision as surrounded by four great thoroughfares, to-wit: Kingshighway, Union, Natural Bridge and St. Louis Avenues. The sales plat in no way indicated that the strip was not dedicated to public use. On the contrary, the price lists announced that the "prices include improvements, consisting of concrete streets and curbs, granitoid sidewalks, sewers, water and gas." Furthermore, its advertising matter, correspondence and contracts with reference to the sale of said lots and its contracts with reference to the construction of buildings thereon indicated that said blocks and lots fronted on Natural Bridge Avenue.

The company does not contend for a reservation out of land dedicated for street purposes. It claims absolute ownership of the strip. If it granted the strip for street purposes, there would be no damage to reserve. An attempt to thus reserve damage would be inconsistent with the grant and must fail. Furthermore, the mere payment by the company of taxes on the strip did not defeat the grant for street purposes. [Buschmann v. City of St. Louis, 121 Mo. 523, l.c. 537, 26 S.W. 687.]

It should be stated that the condemnation proceeding extended over a period of eleven years. On May 19, 1924, the court appointed commissioners to fix the damages for the land taken, assess special benefits, if any, against the lands benefited by the improvement, and assess against the city the balance of the damages, if any, above the amount of special benefits. In view of the company's claim of ownership, the city continued the condemnation proceeding against the strip.

On February 9, 1929, the commission filed its report. It found that the lots abutting the strip would be especially benefited in the sum of $19,000, and that the damage for taking the strip was $10,910. It then apportioned against the lots the difference between $19,000 and $10,910 as the balance due on the assessment of special benefits. In effect, it found that the company had no interest in the strip.

Exceptions to the report of the commission were filed by the company. At the April Term, 1929, and on May 17, 1929, its exceptions were heard by the court. At the June Term, 1929, and on September 9, 1929, the court sustained certain exceptions of the company wherein it claimed to be the owner of the strip. There was no exception taken to this ruling of the court. For this reason the company contends that said ruling became res judicata at the close of that term. We do not think so. The court at the same term and on September 16, 1929, made an order granting leave to certain owners of lots abutting the strip "to intervene and make claim to whatever award is made to the Hedgleigh Realty Company, one of the defendants herein." This order is inconsistent with a final determination of the question by the ruling on said exceptions. It is clear that said rulings left the question of ownership open for determination. [State ex rel. v. Klein, 140 Mo. 502, l.c. 510, 41 S.W. 895; State ex rel. v. Riley, 219 Mo. 667, l.c. 690, 118 S.W. 647.]

The company cites St. Louis v. Querl Lumber Co., 277 Mo. 167, 210 S.W. 21, as sustaining its contention. In that case the order was a final determination of the question of ownership.

The second commission, appointed to fix damages and assess special benefits in instances where exceptions to the report of the first commission were sustained, awarded no damage to the company for the strip. In effect, it followed the report of the first commission with reference to the strip. The company also filed exceptions to this report. The exceptions were overruled and judgment entered in accordance with the report of the second commission with reference to said strip.

Having dedicated the strip for street purposes, the company is in no position to challenge the award of damages to the abutting lot owners for taking the strip.

The judgment should be affirmed. It is so ordered. All concur.


Summaries of

St. Louis v. Koch

Supreme Court of Missouri, Division One
Sep 18, 1934
335 Mo. 991 (Mo. 1934)

In St. Louis v. Koch, 335 Mo. 991, 74 S.W.2d 622 (Sup. Ct. 1934), conditioning the dedication upon payment of damages in condemnation was set aside as inconsistent with the grant itself.

Summary of this case from Haven Homes, Inc. v. Raritan Township

In Koch, our supreme court held that a realty company had effected a statutory dedication of a strip of a land through a plat designating the strip as "Reserved subject to condemnation by Ordinance No. 30,828."

Summary of this case from State ex Rel. Hwy. Com'n v. London
Case details for

St. Louis v. Koch

Case Details

Full title:CITY OF ST. LOUIS v. THEODORE KOCH ET AL., HEDGLEIGH REALTY COMPANY…

Court:Supreme Court of Missouri, Division One

Date published: Sep 18, 1934

Citations

335 Mo. 991 (Mo. 1934)
74 S.W.2d 622

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