Goode v. City of St. Louis

20 S.W. 1048, 113 Mo. 257, 1892 Mo. LEXIS 29

• Court: Supreme Court of Missouri
• Decided: December 22, 1892
• Status: Published

Opinion

Sherwood, P. J.

I. The contention in this case in part turns on the meaning of the word “common,” to the purposes of which the litigated property was by the original proprietors dedicated ‘ 'forever. ”

Counsel for plaintiffs insist that the word in question has a more restricted meaning than is usually attributed to it, and, in support of their view, that it means “parle” or “pleasure ground-,” cite the definition of Worcester, “An open ground, the use of which is not appropriated to any individual, but belongs to the public, or to many persons; public, uninclosed space— a .term sometimes applied to an inclosed public ground or parle, in a city.” The words which we have italicized, sufficiently show what the ordinary signification of the term “common” is, and what the exceptional; and that the latter meaning applies to the words in italics. Parties in making contracts or in the execution of instruments, which, will hind them or their interests or affect their property, are presumed to employ words in their usual sense, and not otherwise, unless the contrary clearly appears, because this is the customary way of transacting such business. If we resort to other standards of our language, we find that Webster defines the word in question: “An uninclosed tract of ground, the use of which is not appropriated to an individual, but belongs to the public or to a number.” In another standard work it is defined: “A tract of ground, the use of which is not appropriated to an individual, but belongs to the public or to a number.” Century Dictionary. And if searching further we turn to the same authorities, we find the word “park” defined: “A piece of ground inclosed for public recreation or amusement. ” Worcester. ‘A piece of ground within a city or town inclosed and kept for ornament and recreation.” Webster. “A piece of ground, usually of considerable extent, set apart and maintained for public use, and laid out in such a way as to afford pleasure to the eye as well as opportunity for open air recreation.” Century Dictionary.

So that looking alone to the standards of our language, we find that “common” is by no means the synonym of “park” or “pleasure ground,”' but possesses a much more comprehensive meaning. But quitting lexicographers and turning to legal authorities and adjudicated cases, we find that “common” is defined as: “An uninclosed piece of land, set apart for public or municipal purposes, in many cities and villages of the United States.” Black’s Law Dictionary.

The adjudged cases hold the same views and give expression to a similar line of thought and theory. Thus the supreme court of the United States, when ■speaking of the word under discussion, as used by the proprietors: “We are .not to understand the term as used by them in its strict legal sense, as being a right or profit which one man may have in the lands of another; but in its popular sense, as a piece of ground left open for common and public use, for the convenience and accommodation of the inhabitants of the town.” Cincinnati v. Lessee of White, 6 Pet. 431.

Smith made an addition to the village of Grand Rapids. At the intersection of two streets crossing diagonally was a piece of ground marked on the plat “common,” and,', touching the meaning of this marking, the supreme court of Michigan say: “This indicates an intention on the part of the owner to dedicate it to the public for any use which the proper authorities might deem proper, and which could be legitimately regarded as public. And although it is now claimed that at the time this plat was made the proprietor thereof did not fully understand the meaning of the word “common” as there used, yet we are of opinion that this can make no difference. A person is concluded by the words he deliberately adopts and uses in an instrument, whether he at the time fully understood their legal signification or not. The rights which third parties may acquire cannot be affected by the individual views or understanding of the proprietor in such a case.” White v. Smith, 37 Mich. 291.

In. platting -the city of Philadelphia, there were several large squares on the plat, and on each was marked, “Eight acres for public uses.” Afterward contention arose as to the legal effect of the dedication thus made, and in considering this question the supreme court of Pennsylvania said: “When prop-ei’ty is dedicated or transferred to public use, the use is indefinite, and may vary according to circumstances. The public not being able themselves to manage' or attend to it, the care and employment of it must devolve upon some local authority or -body corporate' as its guardian, who are, in the first instance, to determine what use of it from time to time, is best calculated for the public interest, subject, as charitable uses are, to the control of the laws and the courts, in case of any abuse or misapplication of the trust. The corporation has not the right to these squares so as to be able to sell them, or employ them in a way variant from the object for which they were designed; but they may allow them to remain unimproved or unoccupied, while buildings are too remote to render it proper. They may afterwards' use or permit them to be used for depositories of public property, such as paving stones or offals of the city, for hay scales, for a powder magazine, for a public burying ground, and finally, when a close population surrounds them, for recreation and ventilation, ornament and thoroughfares of the city. * * * In the same manner as to the public landings granted to the city by the founder and others in the adjoining districts, they were for a time unwharfed, then wharfed and used for landing of passengers and of lumber, afterwards for the cording of wood, and now several of the most valuable let out for steamboat landings and other commercial purposes. This has been the uniform practice, and is consistent with the objects for which they were bestowed.” Commonwealth v. Alburger, 1 Whart. 469.

It is difficult to conceive of a case more closely resemblant of the one at bar than that of Newport v. Taylor's Ex’r, 16 B. Mon. 699. In that instance on the plat of the town an open space appeared between the lots on Front street and the river, and was marked ‘The esplanade, to remain a common forever.” Regarding the uses to which this open space thus marked could be applied, the supreme court of Kentucky say: “Was the esplanade to be a common of pasture, a common of piscary, or a common of turbary? Was tbe esplanade, one half of which or more was the sterile shore and bank of the river, dedicated forever to this restricted use of a town situated on the bank of a noble river and seeking and expecting the advantages of that situation? And was not the word ‘common’ understood, and to be understood, not in its technical sense, as being a right of profit which one man may have in the land of another, but, in its popular sense, ‘as a piece of ground left open for common and public' use, for the convenience and accommodation of the inhabitants of the town.’ * * * We are of opinion that the dedication of the slip of ground in question as a common by the plat of 1795, and by the act establishing the town, was a dedication of it as public ground, for the convenience and accommodation of the town and the public, and for such appropriate uses, exclusive of the ferry right in Taylor, and not inconsistent with it, as'are to be implied in the dedication of a narrow slip of open ground between the lots and a navigable river, which include the right of constructing wharves and charging wharfage, which has never before been in contest between these parties.”

Similar declarations as to the meaning and full import of the word “common” are to be frequently found in other adjudicated cases which the industry of counsel on behalf of defendants has brought to our attention. Crawford v. Railroad, 67 Ga. 405; Commissioners of Bath v. Boyd, 1 Ire. L. 194; Scott v. BesMoines, 64 Iowa, 438; State ex rel. v. McReynolds, 61 Mo. 203; Cummings v. St. Louis, 90 Mo. 259. In the case last cited a definition of the word “common” is given similar to that employed in Cincinnati v. Lessee of White, supra.

Now, if the cases already cited give the correct definition of the word under discussion, and there are none to the contrary, then it must needs follow that the city has not appropriated the common to purposes other than those implied in the term used. If this be conceded, then of course authorities cited by plaintiffs to the effect that property dedicated to one public use cannot be diverted to a purpose alieü to that of its dedication, possess no possible relevancy to the point in hand. And even if the word “common” were not as well defined as it is, the contemporaneous construction given to it from 1841, certainly from 1853, a construction which has been continuous down to the present time, by the acts of the city and by the failure of the original proprietor, and those who now represent them, to interpose any objection or offer any obstacle to such construction, would of itself have indelibly fixed the meaning of that word in accordance with the practical every day meaning thus given it during the long series of years which have intervened between such contemporaneous construction and the present period. This would be the case as to contracts, and the contract of dedication forms no exception to the familiar rule as to usage giving or fixing the meaning of words. We hold then on this branch of the case that none of the purposes to which the- city has applied the common or square have been at all variant from those originally intended. It is true that in the course of time the city authorities have permitted, perhaps encouraged by their licenses, a substitution of the rapid transit of railroad trains across the common in lieu and stead of the slow moving wagons of former times; but this is but a change in the method of the public %ise and not in the tise itself and such method is entirely germane to the purposes of the original dedication, and within the legitimate regulation and control of the municipal authorities. And the extension of North Market street across the square, so as expeditiously and safely to reach the river bank, falls within the same line of remark; it was neither an abuse nor a diversion of the dedicatory trust committed to the hands of the city, but in entire keeping-therewith. Indeed it might with great force of reason be urged that the city by its deed-contract of 1853, having accepted the common and agreed to build the wharf, which it has done in a manner worthy of commendation, and which has received the approval of this court (City v. Ferry Co., 88 Mo. 615), had the right as an incident of the.former one to construct a suitable pass-way in order to reach the wharf thus built.

II. But should it be granted that a diversion of the common from its original uses had occurred, still this concession would not aid the plaintiffs in their present endeavor to obtain for their own %ise this valuable property, and for the reason stated in Barclay v. Howell's Lessee, 6 Pet. 498, that: “If this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery, to compel a specific execution of the trust, by restraining the corporation, or by causing the removal of obstructions. But, even in such a case, the property dedicated would not revert to the original owner. The use would still remain in the public,' limited only by the conditions imposed by the grant.”

On this topic, Judge Dillon remarks: “Property, unconditionally dedicated to public use orto a particular use, does not revert to the original owner except where the execution of the use becomes impossible. If the dedicated property be appropriated to an unauthorized use, equity will cause the trust to be observed or the obstructions removed.” 2 Dillon on Municipal Corporations [4 Ed.] sec. 653 and cases cited; Curran v. Louisville, 83 Ky. 628.

In this case, counsel for plaintiffs expressly admit “that there is a physical possibility of converting the square into a vacant tract of land.” This admission ■entirely coincides with the statement made by a witness for plaintiffs, Cozzens, to the effect that in ten days all obstructions could be removed and the surface would be left level and smooth and thus converted into a common ; and that if the lumber were taken off, that there is nothing to prevent making the square a park except improving it.

In the circumstances here presented, mere nomiser -or misuser will not work a reversion; this is abundantly shown by the authorities If a departure be shown on the part of the officers of the city in the observance of the trust created by the dedication, resort must be had to a court of equity to compel a performance ' of the trust, or the obstructions thereto removed; but here no such departure has been shown, and, if anything could be deemed obstructions to the observance of the trust, the facility of their ready removal is both admitted and proven, and, more than that, since this proceeding was instituted, the plaintiffs have made a formal demand on the city that the land be cleared of obstructions and used as a common, “a very singular demand,” as Judge Dillon aptly remarks, “if it was a thing impossible to be done.”

III. It is however insisted that Campbell v. City of Kansas, 102 Mo. 326, gives full support to the claim of plaintiffs. This is a total misconception of the rulings in that case. There a certain square in the plat had marked thereon: “Donated for graveyard.” It was used for that purpose for years. Subsequently the rapid growth in the ■ population and size of the city, and considerations of the health of the’ city, necessitated the passage of an ordinance vacating the donated lot for future purposes of sepulture; requiring the removal of the remains therein deposited; and fobidding its further use as a graveyard. This ordinance was passed in 1857 as a mere police regulation, power having been granted the city in 1853 “to make-regulations to secure the general health of the inhabitants and to prevent and remove nuisances” Under this ordinance the remains were removed; the locality leveled to the grade of the surrounding lots; the place utterly discontinued as a graveyard, converted by the city authorities into a public park, sown in grass and planted in trees, and in all this the public acquiesced for some twenty-five years.

In such circumstances as these, it was held that the place had been discontinued and abandoned as to the purposes for which it had been originally dedicated, and therefore the heirs could claim a right of reverter and recover in ejectment. To state the facts in that case is to broadly distinguish it from the case at bar and to show that the doctrine laid down there is in harmony with the authorities heretofore cited in this, to-wit, that, owing to the legitimate exercise of the-police power and the subsequent acts of the municipal authorities and of the public, the execution of the use had become impossible. This is the gist and theory of that case. See Newark v. Stockton, 44 N. J. Eq. 179.

IY. But, apart from all other considerations, the circuit court correctly ruled in dismissing plaintiff’s petition, for these additional reasons. They sue not to■ enforce the original trust, hit to enrich themselves. Thus, suing alone in their individual capacity and not as the-vindicators of a public use disregarded and trampled upon as they claim by the municipality, they stand' before this court as ordinary suitors, suing to obtain private relief and to secure individual benefits. They and their ancestors have stopd silently by while the city in good faith, and during a period of time of nearly forty years, has expended nearly $1,000,000 in money and converted a narrow swampy, almost worthless hit of ground into a noble square and wharf nearly ten times as large as it was originally; and besides, meanwhile, others, some of whom are residents in the near vicinity, have also acquired rights in equal good faith of the continuance of the public use in the common in question. Considering the plaintiffs then in the light of mere private suitors and not otherwise, they are clearly estopped from seeking relief at the hands of a court of equity, either against the city or against those who have bought and improved land in the vicinity on the faith of the improvements aforesaid, which the city has made, and of the common and wharf continuing in its present shape and with its present commercial facilities.

It was on the score of possessing an interest such as this which caused this court to affirm the judgment of the circuit court, which, at the instance of a landowner who owned property some three blocks away from the square, enjoined the city from carrying into execution an ordinance which' authorized a decree to be entered for the sale of the very property now in dispute, and the proceeds to be divided half and half between the city and the present plaintiffs. Cummings v. St. Louis, 90 Mo. 259.

We therefore hold, that, viewed in any light, the plaintiffs have no ground for relief, and hence affirm the judgment.

All concur; Barclay J., in all that has been said; Brace J., in all the paragraphs except number 3, as to which he dissents; Black J., concurs in all but the same paragraph, as to which he expresses no opinion.