Stephens v. Murray

Barclay, J. February 23, 1892, this action of ejectment was begun. It is unnecessary to state the pleadings. The dispute concerns the title to a piece of land which once was a graveyard in Springfield, Mo. Plaintiff traces title from Mr. John P. Campbell, admitted to have owned the property at one time. Plaintiff exhibits no direct conveyance from Mr. Campbell, but relies on a recital in a deed, dated August 30, 1851, from the same Mr. Campbell to another person. In that deed the land conveyed is described as located “north of the northwest corner of the public graveyard heretofore conveyed by John P. Campbell to Greene county.” [472] Plaintiff then gave in evidence a conveyance of the land by Greene county to the heirs of John A. Stephens, August 16, 1888, together with proof of the prior death of Mr. Stephens, and conveyances to plaintiff from three of the other heirs of Mr. Stephens. The latter left six children, of whom plaintiff was one; and thus by inheritance and the conveyances mentioned plaintiff acquired four sixths of the interest of his father in the estate conveyed by Greene county. As part of plaintiff’s ease, it appeared that defendant had been in possession since 1887, under deeds from the city of Springfield and from the heirs of John P. Campbell; and that the land had been in use by the city as a graveyard for a long period prior to 1869. That use continued for many years longer, until the city by ordinance forbade further interments therein. In 1887 the city sold the land to defendant for a consideration consisting partly of money and partly of the expense of removing the dead bodies to another cemetery in the city. Erom 1869 to 1887 the city had possession of the property, repaired the fences, kept down the weeds and protected the property from trespassers. In 1882 some of the Stephens heirs attempted to put up a few fence posts about the land with a view to asserting a claim to it; but after some arrests by the city authorities they desisted. On the side of the defendant there was ample evidence of adverse possession by the city and defendant, far beyond the requisite statutory term. The trial judge at the close of the testimony declared that plaintiff had failed to make out a case, and then he found for the defendant (a jury having been waived). There was judgment accordingly, and plaintiff appealed in the usual way. 1. Plaintiff’s claim is that Mr. Campbell donated the land for public use as a graveyard and that, upon [473] cesser of that use, the land reverted to those entitled to his interest. But that contention of plaintiff is fatally weak in failing to find support in the evidence. Laying out of view the abundant testimony of defendant to the effect that the city of Springfield originally paid a cash consideration for the land prior to 1850, the plaintiff’s own showing does not tend to prove any donation or gift of the land either to the county or city for the purposes of a public cemetery. The recital on which plaintiff relies (in the deed of 1851) merely refers to “the public graveyard heretofore conveyed by John P. Campbell to Greene county.” No further disclosure of the nature of the conveyance is given, supporting plaintiff’s contention; and we are of opinion that the recital quoted does not support that contention. Such a recital can not of itself be reasonably construed to import that the conveyance was by way of gift, or without consideration or upon a condition subsequent. Plaintiff in ejectment must, as a general rule, rely on the strength of his own showing of title. And that rule has undoubted application where, as here, defendant develops a plain and clear title by adverse possession. As the burden was upon plaintiff to prove his case, or to give evidence tending to prove it, he was bound to exhibit facts warranting at least an inference that the conveyance by Mr. Campbell was upon such terms as would bring into play the principles of the law of reverter which plaintiff invokes. This he failed to do. 2. In the absence of any testimony by plaintiff to prove that the conveyance by Mr. Campbell of the graveyard was other than of the entire title in fee, there is nothing to preclude the application of [474] the statute of limitations in defendant’s favor. On plaintiff’s own evidence the city had had, for much longer than the statutory period, exclusive adverse possession, with all its essential elements. A municipal corporation in its proprietary capacity, no less than an individual, may acquire title by adverse possession. The case at bar exhibits no obstacle to giving full effect to the statute of limitations in favor of the city, and of defendant as its grantee. The learned circuit judge was correct in his ruling. The judgment is affirmed. Brace, 0. J., and Macparlane and Robinson, JJ., concur.