Board of President of the St. Louis Public Schools v. Risley

Wagner, Judge, delivered the opinion of the court. This was an action of ejectment, which resulted on the trial below in a verdict and judgment for respondents. The property, of which the title is drawn in question, is block 856 in the city of St. Louis, and lies between Hazel and Lorn-bard streets, and east of the old city block 44. It is shown, that, previously to 1844, the Mississippi river ran along the-eastern border of block 44 and considerably west of the present Main street. After the great flood of 1844 accretions began to form, and in a few years the shore in front of block 44 had reached several hundred feet. This led to a new arrangement of streets. Main street, which liad previously run. no farther south than Plum street, was extended through the new-made land, with an enlarged width ; Lombard, and. Hazel streets were prolonged to the new bank of the ri.v.er,. and, in this way block 856 was formed. The City of St. Louis originally claimed the ownership of the block in controversy, contending that the lots in, block 44 did not extend to the river, but were separated from it by a street, passway, or open place, which belonged, to the. city, and attracted the accretions. — 366 — The Board of Public Schools set up claim to ownership, under the reservation in its favor, by act of Congress of 1812, of all vacant lots, asserting that riparian rights did not attach to urban property, and that as the town of St. Louis extended to the middle of the river, and that as the bed of the river was not rightfully claimed at the date of the act by any private individual, it fell of course to the Public Schools. Before the commencement of this action the city conveyed to the Public Schools all its title to block 856. The proprietors of block 44 (the respondent being one of them) also claimed the said block, insisting that their rights of property extended to the river, and the new-made land belonged to them as being a riparian accretion. On the trial, the plaintiff, as proof of title, gave in evidence the record of the incorporation of the town of St. Louis, made by the Common Pleas Court in 1809 ; the outboundary survey of St. Louis, by the Surveyor-General, in 1840 ; the assignment of block 8,56 to the Board of Public Schools, by the Surveyor-General, in 1857, said survey numbered 400; act of Legislature, approved November 28,1857, authorizing a compromise of conflicting claims between the city and the school board; the deed of the city conveying block 856 to the school board; and an act of the Legislature, approved March 3, 1851, in relation to swamp lands in Saint Louis county. Plaintiff then introduced in evidence several maps and a large mass of documentary evidence, which is not sufficiently material to require being set forth here; and, among others, a concession to Louis Bide and a confirmation of the same, together with a survey of the same confirmation by the Surveyor-General. According to this survey, the claim was located in the northwest quarter of block 44, and extended eastwardly no farther than 150 feet. Also much testimony tending to prove (though slightly, we think) that the original grant or concession of block 44 was bounded on the east by a road which separated it from the Mississippi, and that it did not extend to the river. — 367 — The defendant proved that the old city block 44, which lies immediately west of the block in controversy, was inhabited and cultivated for many years prior to December 20, 1803 — one Leveille living on the south half, and Madame Charleville on the north half. The fact of such cultivation and inhabitation was fullen proven; the contest was in respect to the extent of the lots of Leveille and Charleville towards the east, the defendant insisting that they extended to, and were bounded by, the river; while the plaintiff contended that they ran no farther eastward than a public passway, or open space, that separated the lots from the river. This was the real controversy and the main issue of fact before the jury. The defendant introduced a concession by the Spanish Governor, dated March 1, 1788, to the free negro Charles Leveille, for a lot in St. Louis of 60 By 150 feet, and described in the concession as follows: “bounded on the one side by the heirs of Louis Ride ; on the other, by His Majesty’s, domain ; on the rear, by the Mississippi [por detras, al rio Mississippi] ; and on the main front, by the road which follows from the second main street to the Prairie-a-Catalan.” The defendant also introduced a concession by Gov. ernor Manuel Perez to Augustin Amiot, dated September 2, 1788, of a lot in the southern part of St. Louis, described as follows in the concession : “ 120 feet front by 150 feet deep ; bounded on the north side by the lot of the free negro called Charles, on the other side by the a-oyal domain, on the rear by the Mississippi, and on its principal front by the royal road leading to the Px’airie-á-Catalan.” Parol evidence was introduced by both parties, tending to show on the one side that iix Spanish times the lots ran to the river; that there was never any street between the east end of the lots and the river; that the ends of the fence would sometimes have to be moved back on account of the abrasion or falling in of the river bank; the river, for some years prior to 1844, occasionally slightly receded from the east bank, in low water, but in consequence of high water in — 368 — 1844 the ground afterwards made rapidly eastwardly; the accumulations were also caused by the materials used in constructing cross-streets out in the river. On the other side, the parol evidence tended to prove that there was always a path or road (sentier) between the lots and the river in Spanish times, and that the road extended the whole length of the town; that the government always left a strip of land along the river for voyagers, but that the road along the river was repaired by the voluntary act of the people living* along the road, and not by public authority or public taxes. Defendant gave in evidence a resolution of the board of aldermen of the City of St. Louis authorizing a survey and map of the city, and a lithographic copy of Paul’s map of 1823, which was proved to be a true copy of the original made under such resolution. It was admitted that the field notes of the survey and the original map were lost. From this map it appeared that Main street extended, at the date of the map, no farther south than Plum street, and that the river covered all the eastern part of block 44. Defendant then introduced the ordinance of the city passed in 1851, opening Main street south of Plum and through block 44, and proved that defendant, in conformity with the ordinance, relinquished the right of way; also a tax sale of the lot of Leveille for the city taxes of the year 1826. The certificate of sale and the assessment describe the lot as bounded east by the river. Defendant then showed in evidence the tax receipts for defendant’s property for the years 1837,1838, 1839, 1845, 1846, 1847, 1848, 1849,1853,1854,1855,1856,1857. From these receipts, it appears that up to 1853 the defendant was taxed for a lot in block 44 as bounded on the east by the river. The depth of the lot is described as increasing from 150 feet in 1837 to 800 feet in 1854. In 1854, and following years, the defendant was taxed for the property in dispute as lying between Main and Front streets. Defendant also showed that he had been assessed by the city, and had aid in 1854 a tax on the property in question for opening — 369 — streets, and then introduced a map of Risley’s addition, recorded in 1855. Defendant then introduced Thomas Marshall as a witness, who testified that he was an examiner of titles ; that he had examined almost all titles to lands in the city of St. Louis, and who gave it as his conclusion that the land of Ride was north of Elm street. Also read in evidence the deed of Tayon to Papin in 1832, in which the lot is described as bounded eastwardly by the Mississippi river, or street if any there be; also the deed of Papin to Stearnes and Risley, containing the same boundaries; also the deed of Stearnes to Risley in 1836, with the same boundaries. There was much other testimony on both sides, but the above constitutes essentially the controlling parts, and the balance was merely auxiliary or cumulative. Several objections were taken on the trial to the admissibility of evidence on the part of the appellant, but the objections were mostly of a general character, without specifying any particular reasons against the admission; and where such is the case, this court has held that it will not look into the question to see or conjecture on what grounds the evidence was objectionable. Evidence may be admissible for one thing in the course of a trial, when it would be wholly excluded for another, and it is the duty of a party objecting to state specifically his reasons therefor. It is insisted that the court erred in receiving the receipts of the collector of State and county taxes paid by Risley from 1837 to 1857 on his lot in block 44, and that the case of St. Louis v. Gorman, 29 Mo. 593, is an authority directly against the admission of the evidence. But the cases are not analagous. In Gorman’s case, the party relied on tax receipts as passing the title of the city by estoppel. It clearly appeared there that the officers of the corporation, without any authority, assessed the property of the corporation against a person for taxation, and returned the same as delinquent for non-payment of taxes, bought it at the tax sale, and conveyed it upon redemption ; and this was held not to estop the city — 370 — from claiming its property against the unauthorized acts of its officers. But no such state of facts were set up in this case. The payment of taxes, singly and by itself, would amount to very slight evidence; but in some circumstances such payment is a fact which may be submitted to the jui-y, and be weighed by them in making their verdict. Payment of taxes has been admitted in questions of adverse possession, and may have an important bearing, as it is not usual for one owning realty to neglect paying taxes for a period which would be sufficient to constitute a bar under the statute of limitations, or for one to pay taxes having no claim or color of title. The party here, however, was in possession, and the evidence was introduced ostensibly for the purpose of defining the boundaries. We think the evidence was properly allowed to go to the jury as a circumstance to show what was the understanding of the parties as to the lines and boundaries of the lot. As to the testimony of Marshall, it is clear that his opinion was not admissible ; there is certainly nothing in the law of evidence which would make the opinion of an examiner of titles evidence of location in case of conflicting and doubtful lines. A practical surveyor may express his opinion whether the marks on trees, piles of stones, &c., were intended as monuments of boundaries ; but he cannot express an opinion that, from the objects and appearances which he saw on the ground, the tract he surveyed was identical with the-tract marked on a certain diagram — 1 Greenl. Ev. 440. But granting that the evidence was entirely incompetent, when the other proofs are considered together with the original concession we do not see that the appellant was injured by it. It is objected that the deeds of Papin and Stearnes were not admissible to show title in the respondent because they were offered and read in reply to the rebutting testimony of the appellant. Although the respondent had rested, and these deeds were necessary to show his derivative title, yet — 371 — tlie introduction of testimony out of its regular order, or after a party has closed his case, when he has omitted a material link through inadvertence, is a matter resting in the sound discretion of the court below, and will not be reviewed here. In the present case, the dispute between the parties grew out of the existence of a road along the eastern line of the lot. The law seems to be well settled, that tradition, reputation and hearsay are admissible to prove the extent, char-' acter and existence of public rights as regards the location and boundaries of things of a public nature. The only conflict here being as to whether the eastern line of the lot was bounded on a public highway, it follows that it falls fully within the rules admitting hearsay, reputation and tradition. But it is needless and supererogatory to examine with particularity and detail all the questions that have been raised in argument. The only important point in the whole case turns on the question as to whether the proprietors of the lots are entitled to riparian privileges. This question has been considered twice before in this court, and once in the Supreme Court of the United States, and must be considered as settled as res adjúdicaía, and no longer a subject for discussion. In the case of Jones v. Soulard, 24 How. (U. S.) 41, it is expressly decided that the calls for the eastern line of the boundary of St. Louis, in the incorporation of 1809, make the city a riparian proprietor upon the Mississippi, and as such entitled it to all accretions as far as the middle thread of the stream. In Smith v. Public Schools, 30 Mo. 301, it is held that if the river is the boundary of a town lot, it may be riparian just as much as a tract of land would be in the country; and the question is again examined, affirmed and approved in LeBeau v. Gaven, 37 Mo. 556. That the calls and descriptions contained in the original concession to Leveille called for the bank of the Mississippi as its eastern boundary, cannot be for a moment gainsayed or doubted. Whatever evidence there was bearing on the subject was — 372 — given to the jury under instructions of the most favorable character for the appellant. We have been unable to detect any error in the action of the court in either giving or refusing instructions, and we accordingly order its judgment to be affirmed. The other judges concur.