Kansas City v. Scarritt

SHEEWOOD, P. J. — Ejectment for that certain block of ground in Kansas City bounded by Missouri avenue, Locust street, Independence avenue and Oak street, which was formerly the subject of controversy in Campbell v. City of Kansas, 102 Mo. 326. Ouster .laid as of December 19, 1890, :and damages in the stun of $10,000 demanded. Defendants in this action,' or their predecessors in interest, were plaintiffs in the former case, and- were put in possession under a writ of restitution upon final determination of the former action. Shortly after such restitution, plaintiff renewed the legal contest by bringing the present possessory ■action, to recover possession of the premises thus lost, but upon the resultant trial again suffered defeat, and now, for the second time, questions the correctness of such outcome by this appeal. The facts out of which this litigation arose are briefly as follows: In 1843, John C. McCoy and others acquired, at a partition sale, a tract of land which included within its bounds the loom in• quo. In June, 1847, McCoy made a plat of the part of the property which he and his associates had ae■quired, laying off one hundred and fifty lots for sale, and dividing the balance of the tract into portions which he designated as “lands.” One of these “lands” was No. 21 upon the plat, and is the same property now in dispute. In the following September, these so-called “lands” were divided among the fourteen proprietors, and that “land,’) “No1. 21” was — 480 — marked on tbe plat by McCoy, “Donated for graveyard.” The-plat was never signed or acknowledged by anyone, but two years later was deposited in the office of tbe recorder of deeds. It seems from tbe evidence that even before this donation tbe property had been used for tbe interment of human bodies, and was so used by the general public until 1857; and occasionally burials took place there up to 1862. Tbe plaintiff city was incorporated in February, 1853, and this particular plat of ground was included within its. corporate limits. In October, 1857, tbe city passed an ordinance prohibiting further interments in this graveyard, and declaring it vacated for burial purposes, but it appears that at that time none of the already-interred bodies were removed. Until 1866 tbe plat seems to have remained in unchanged condition, except that during the war it was much neglected, and some of .the tombstones and fences broken down. About tbe latter year some of tbe bodies were removed to other-places of sepulture, and in 1870 the city inclosed the graveyard with a plank fence, which remained standing but a year or two. Between 1872 and 1874 tbe city undertook to grade all tbe streets about tbe graveyard, and in so doing all of tbe old fence which remained was completely destroyed. During the progress of the work, many human remains were encountered, and this caused a removal of almost all of those yet remaining. Prom that time forward tbe property presented tbe usual appearance of a neglected graveyard, until tbe spring of 1878, when the- city proceeded to grade tbe property to tbe level of the- established streets surrounding it, using tbe prisoners serving sentences in tbe city workhouse in performing tbe work, which was in. progress for some time, but finally completed during tbe summer of 1879. While it was going on, all tbe graves wbicb remained were removed. The remains of those which could be recognized were interred in other suitable places, and those incapable of recognition were gathered together in boxes. Af — 481 — ter completion of this work, all traces of a burial place were destroyed, and there was no feature about the property which would give a clue to its former or present use. It is in evidence, however, that the city conceived the idea of placing monuments or small slabs of stone underneath the surface of the ground for the purpose, as was said, of indicating the existence of graves, but nothing was left upon .the surface which might indicate the former nature of the property, and,, after the present defendants got into possession, a search for bodies was made under these small pieces of stone, but no traces were found of either human remains or boxes in which they might have been buried. It further appeared in evidence that the city, by its ordinance of March 5, 1868, condemned an alley through the center of the block, and in 1872, by its answer in a certain cause then pending in the circuit court of Jackson county, wherein one Grant was plaintiff and the city defendant, the latter averred “that the defendant has never owned, and does not now own in fee simple absolute, the lot or parcel of ground' described in the petition or any part thereofand that upon the trial of the former case (to-wit, that reported in 102 Mo. supra), thé attorney for the city, in response to an offer of certain evidence, said: “The city don’t claim the square, and never expects to get it. They claim it as a graveyard, and have the right to bury there, and people are buried there now.” On behalf of defendants here it was also shown that in its answer in the Campbell case, the city averred that “said land No. 21 is now, and was since June, 1847, and has been, a graveyard, and that the city of Kansas City has, during the last fourteen years, expended large sums of money in and upon said graveyard.” The answer of all the defendants save one, after admitting possession 'and denying the right of plaintiff, set up — 482 — the foregoing action and conduct of the city by way of estoppel, and pleaded that since the judgment in the former case the plaintiff had assessed and collected special taxes and assessments against the property, and had in other ways recognized the ownership of the defendants. The other defendant stood upon a general denial. After the city had joined issue by filing a reply in the nature of a general denial, the venue was changed to Clay county, where a trial was had, with the result above stated. The city now prosecutes its appeal from that judgment, and seeks to overturn the ruling which the trial court made in accordance with the opinion of this court in Campbell’s case. 1. At the outset, it will be seen that the plaintiff’s claim is not supported by any paper title, but must rest either upon the dedication of 1847, or adverse possession for the statutory period after an abandonment of the purposes -to which “land No. 21” was dedicated. Upon its title, as it makes it out in evidence, the city must stand or fall, as it can not derive any aid in this action from any infirmity of defendant’s title, and it is to the former, therefore, that we first look. -The first proposition amounts to a contention that the legal title to this property passed out of the owners by the dedication of 1847, and that instead of being a donation for a particular purpose only, or the grant of an easement for public use, it was the transfer of a fee simple absolute title, so that in no event could there be a reversion. The argument itself suggests the inquiry, In whom did the legal title vest, if it passed out of the original owners under the dedication? It must, of necessity, have vested somewhere; for it could not remain in suspense or abeyance. Certainly it could not have vested in the city, because it was not then in being, and it is equally clear that it could not have been lodged in so indefinite a grantee as the general public. The only possible conclusion is that reached by this court, in the former case, that the legal title remained in the — 483 — original owners, subject to the use of the public for the purpose of the dedication, and as no subsequent act on their part is shown which could have the effect of a transfer, it must still be in them, unless they have lost it by the adverse possession of plaintiff. No legal legerdemain could divest them of their rights when the municipal corporation was- subse¡quently organized, or ab any other time. In support of this proposition, counsel for plaintiff have woven in the loom of their minds an elaborate and ingenious argument, but it is not in accord with the prior rulings of this court which have gone unchallenged for many years, nor with the adjudications in other jurisdictions, and we are consequently unwilling to give it sanction. Upon the proposition as to adverse possession, it is only necessary to say that in order to support it plaintiff must have shown not only the elements which are ordinarily usual and essential for the establishment of such a claim, but, in addition thereto, an open and avowed repudiation of the easement, and a holding adversely to it for the statutory period. It could not hold the land as trustee for the use of the public as a cemetery, and at the same time hold it adversely and for its own benefit The city does not enjoy any greater privilege in this regard than any other litigant, and it has always been held that a party in possession of property in privity with the rightful owner, or in accordance with the terms of a demise or grant from him, can not begin to hold adversely to him, or to the terms of the grant or demise, without first laying a foundation by open and 'explicit repudiation and denial, and this, too, accompanied by, and coupled with, an abandonment and surrender of the premises, and then a resumption of them under claim of the adverse right. Illustrations and instances of this familiar and shopworn principle abound on every hand, and cover many pages of our reports as well as of the horn-books of the profession. [Emmel v. Hayes, 102 Mo. loc. cit. 199, and cas. cit.; Meier — 484 — v. Meier, 105 Mo. loc. cit. 432, and cas. cit.; Downing v. Dinwiddie, 132 Mo. 99; Stewart v. Miles, 166 Mo. loc. cit. 181, and cas. cit.; Fleming v. Mills, 55 N. E. 373.] Besides, intent becomes and forms a large factor in de~ termining the nature of the possession alleged to be adverse, and in no manner can intent be better judged than by words, actions and conduct. Subjecting_ the claim of pláintiff to this test, as well as to- other considerations supported by the above-cited authorities, it would seem, that its possession falls far short of the requirements of the rules above laid down. By its answer in Grant’s case in 1874, the city solemnly-disavowed claim of ownership in fee; in 1878 its common council enacted an ordinance directing the city engineer to cause the property to be “prepared for cemetery purposes at once;” in 1884 it filed its answer in the Campbell case, averring that it was then, and, since 1847, had been, a graveyard, and that it had spent large sums of money upon it as a graveyard, and during the trial of that case its counsel in open court asserted that “the city don’t claim the square and never expects to get it. They claim it as a graveyard, and have a right- to bury there, and people are buried there now.” It would be difficult, indeed, to map out a line of conduct less in accord with the claim plaintiff now makes, and in the face of it all the assertion that, at the very time of such acts, the property had ceased to- be a burial place and was held 'by the city for its own and general purposes, is more remarkable for boldness than sincerity. But, says plaintiff, if there was any abandonment, it occurred in 1857, when by ordinance the city forbade any further burials, and the reversionary interests having then sprung up, the city acquired title by adverse possession, prior to the institution of the Campbell suit. This contention is quite as fallacious as it is inconsistent, besides having no such facts t-o originate an adverse holding as are required by the above-cited decisions and authorities. This contention, as485 will be observed, assumes that the mere prohibition of future burials in itself worked an aba'ndonment, but there can be no such magic in the simple declaration of a legislative intent, especially when it is not accompanied by any act of performance, or any other act of notification, as abo^e indicated, to the reversionary owners. A cemetery is none the less a graveyard because further interments in it become impossible. It only loses its character as a resting place of the dead when those already interred are exhumed and removed. Notwithstanding the ordinance of 1851, the graves were undisturbed until 1866, and not until 1818 were all of the bodies removed from the premises.- 2. It is next urged upon us that there could be no reversion in this case because the dedication of 1841 was not a donation, in that the public, in purchasing the lots laid out on the plat, paid an enhanced price on account of the dedication; but there is neither novelty nor merit in the contention. It was before- this court in the former case and Was then disposed of in these words: “It may well be that the dedication of highways and parks furnishes a valuable inducement to purchasers of surrounding property. But I do not think that the proximity of, or convenient access to, a graveyard can be reasonably classed among the inducing causes of the sale of real estate.” [Campbell v. City of Kansas, 102 Mo. loc. cit. 356.] To these w'ords it may be added that the argument amounts to an arbitrary assumption of a very doubtful question. Almost every one knows that a burial ground does not enhance the value of the surrounding property, and there is no> reason why courts should pretend to be more ignorant than the rest of mankind. If, as suggested by plaintiff, the lots laid out for sale could not have been injuriously affected by the existence of the cemetery because the nearest of them was distant four hundred and twenty feet from it, the same circumstances W'ould serve as a reason why they were not bettered by it. — 486 — There is- a self-evident distinction between donation for a public park or common, and one for a burial ground, and the case of Goode v. St. Louis, 113 Mo. 257, and other authorities cited by plaintiff, have no bearing on the insfant case. 4 3. As a further argument against a reversion, it is said that the court below erred in admitting the deed of the commissioners in partition to the fourteen original owners; that the deed was void and, therefore, defendants did not demonstrate their right to the reversion. This deed bears date August 17, 1843, and recites that by order of the circuit court of Jackson county, at the April term, 1838, it became the duty of Peter Booth, James B. Davenport and Elliott Johnson, commissioners appointed by the court, to sell at public auction, after due notice, certain real estate in the said county belonging to the representatives of Gabriel Predhomme, deceased; that such notice was duly given and a sale had on November 14, 1838; that at such sale William L. Sublette and others were the highest bidders; that- the said property was sold to them; after the said sale two of the commissioners, Booth and Johnson, died, and that, therefore, the survivor, Davenport, for the consideration named, gave, granted, bargained and sold to the said Sublette and others (naming them), the property described, together with all the right, title and interest- of the heirs and legal representatives of said Predhomme in and to the same. The appended acknowledgment, taken in open court at the August term, 1843, recites that satisfactory proof of the death of the other commissioners was made and that “the said Davenport, commissioner as aforesaid, being personally known to the court, acknowledged said deed to- be his act and deed, for the purpose therein mentioned, which is ordered to be certified and indorsed on said deed.” Plaintiff contends that tire deed is void on its face because executed by only one of the three commissioners, and — 487 — because it does not appear that the sale was ever confirmed, or that dll the heirs of Predhomme were parties to the partition case, and section 39 of the partition act of 1835 is cited in support of the contention. The circuit court of Jackson county was a court of general jurisdiction; had jurisdiction over both persons and subject-matter, and, therefore, though the record be silent on the subject, it will be pre1-sumed that dll of the heirs of Predhomme were made parties by appropriate procedure or voluntary action on their part, and that the sale was confirmed. [Huxley v. Harrold, 62 Mo. 516, and many subseq. cas.] Aside from the fact that no defect in a'defendant’s title can serve to aid. a plaintiff in ejectment, the deed, whether vaild or void, or merely voidable, could neither strengthen nor weaken plaintiff’s claim of adverse possession. In addition to that, it was shown in evidence from the transcript of the testimony in the former case, that counsel for the city, upon an offer to read the record in the partition ease, admitted that “the deed made by commissioner Davenport to the original fourteen Old Town proprietors carried the title to the quarter section of land therein mentioned to the parties named therein.” The deed was, however, entitled to admission as an ancient document, coming, as it did, from the proper custody, and needed no other proof than that it carried on its face. [1 Grlf. Evid. (15 Ed.), secs 23, 27, 141, 570; Long v. McDow, 87 Mo. 197; Endsley v. Strock, 50 Mo. 508.] And that admission was a solemn admission made in open court. [1 Grlf. Evid., secs. 186, 205.] And even if it did not have the effect of conveying the legal title, yet it certainly did convey the equitable title, and such title would have been an amply sufficient basis on which to resist ejectment if brought by Predhomme’s heirs (Long v. Joplin Mining Co., 68 Mo. 422, and cas. cit.) and a fortiori sufficient if brought by the plaintiff city. — 488 — Plaintiff, however, seeks to avoid the effect of its admissions in this and other particulars by showing that the transcript of the testimony given in the Campbell case, was. improperly admitted in evidence in the present instance. According to the record which plaintiff has brought here, the only objection it raised in the lower court, when defendants offered the testimony contained in the transcript, was, “that the offer was too general.” Such an objection, which in and of itself lacks certainty, raises no question for an appellate court. Furthermore, it is also disclosed that counsel for the respective parties agreed in open court, at the trial of this case, that either party might use such parts of the transcript referred to as desired, subject to objections as to relevancy, materiality, admissibility and competency, but it nowhere appears that plaintiff raised any such objections, although it seems to have read in its own case such parts of the transcript as it deemed beneficial. Other questions raised by plaintiff need no discussion, as it results from what has already been ruled that there was no error prejudicial to plaintiff, either in respect to evidence or instructions to the jury; and so, being persuaded the judgment was for the right, party, we affirm it. All concur. Burgess, J., does not concur as to remark about surrendering possession and then resuming it; he thinks notification of hostile intent sufficient, and Gantt, thinks the same way.