City of Hannibal v. Heirs & Adm'r of Draper

Holmes, Judge, delivered the opinion of the court. It was decided when this case was here before (City of [336] Hannibal v. Draper, 15 Mo. 634) that the town plat, acknowledged and filed or deposited with the recorder of the county of Marion, was effectual under the statute concerning plats of towns and villages (act of 20th February, 1835, R. C. 1835, p. 599) to convey in fee simple all the title of Stephen Glascock in and to the lots in question to the county of Marion, in hand, for the use of the inhabitants of the town of Hannibal as church ground, and that the act of incorporation of the City of Hannibal (act of February 21, 1845) vested all the title of the county of Marion in and to said lots in the City of Hannibal, for the same public use; and the proposition is not now controverted that the act of. Glascock was sufficient evidence of a dedication on his part of the ground to the public use. But it is now insisted on the part of the defendant, that the dedication was incomplete until accepted by or on behalf of the town; that no evidence of acceptance was adduced by the plaintiff, but that, on the contrary, proof of its rejection had been shown by the defendant. It does not appear that any evidence was produced on the part of the plaintiff to show either that the title to the land was in Stephen Glascock at the date of his plat, or that he had ever been in the actual possession of the lots or ground in controversy. On the part of the defendant, it was proved that the lots in question had been vacant until 1843, when he took actual possession of them by enclosing them within a fence. It may be admitted that all the title of Glascock was vested in the county by virtue of the plat, and that he and all those holding under him afterwards were estopped from denying that fact, and that all the title of the county so derived was by virtue of the act of incorporation vested in the City of Hannibal. But this did not estop the defendant from standing on his prior actual possession; however acquired, it estopped him only from setting up title under his quit-claim deed from Glascock of a date subsequent to the plat. If the plaintiff had shown that Glascock owned the land in fee at the date of his plat, he might have stood upon [337] the position that the title in fee was absolutely vested in the city in trust for the public use declared, without reference to the question whether there had been a dedication and acceptance of the ground for the public use, or not. Even in cases resting upon a dedication and acceptance alone, it must be shown that the dedication was made by the owner of the fee. (2 Greenl. Ev. § 663.) On the other hand, it may be conceded that the tax title of the defendant under the city did not estop the plaintiff, for the reason that the city officers had no power to assess lots owned by the city itself, nor to sell the same for taxes, (City v. Gorman, 29 Mo. 593,) and that the defendant did not show a valid tax title to the ground in controversy. All this still leaves him standing upon an actual adverse possession prior in date to any actual possession shown by the plaintiff, in the city, or in those under whom she claims. On this state of the case, it is plain that no conveyance of title by Glascock, nor any dedication by him, or those holding under his plat, could be of any avail against the defendant Draper, unless the plaintiff had acquired the right to use the ground for public purposes, by virtue of such actual user, as would amount to an implied dedication and acceptance for’ the public use as against all persons whomsoever. In such case it is not necessary to prove who is the owner; nor does the right of the public rest upon grant by deed, but upon the use of the land, with the assent of the owner, whoever he is, for such a length of time, that the public accommodation and private rights might be materially affected by an interruption of the enjoyment. (2 Greenl. Ev. § 662.) The plaintiff gave no evidence of any such dedication and acceptance to the public use, and the evidence adduced on the part of the defendant certainly tended to show that there had been no such user as woixld amount to a dedication and acceptance of that kind. A dedication of this nature is a question of fact for the jury. (2 Greenl. Ev. § 662; State v. Peark, 6 Vt. 355 ; People v. Baubien, 2 Doug., Mich., 256.) [338] The plaintiff seems to have proceeded on the theory that this plat, under the operation of the act in question, vested an absolute title, not only as against the person making and recording it, but as against all the world, and that such was the purport and effect of the decision heretofore made in this case. (15 Mo. 634.). We do not find anything in that decision to justify such a conclusion. According to these views, the first instructions asked by the defendant should have been given. We do not see any material objection to the instructions given for the plaintiff, in themselves considered. The second instruction asked by the defendant was rightly refused, according to the decision in City v. Gorman (29 Mo. 593). The other judges concurring, the judgment is reversed and the cause remanded.