Opinion
No. 28047.
May 15, 1951. Rehearing Denied June 13, 1951.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, RAYMOND E. LaDRIERE, J.
"Not to be reported in State Reports."
Marvin E. Boisseau, St. Louis, Herbert W. Ziercher, Clayton, of counsel, for appellant.
Wayne C. Smith, Jr., Louis L. Hicks, Clayton, for respondent.
This is an appeal from a judgment in the sum of $5,448, in favor of Bertha Roth and against the City of University City and Nick Costelli. The suit was for damages arising out of personal injuries which plaintiff suffered when she fell on the concrete area in front of Costelli's store on Delmar Boulevard, in University City. After trial and appeal of the case Bertha Roth died, and, upon due suggestion of her death, Ellen Nickel, her administratrix, was substituted as party respondent. Both defendants appealed from the judgment but Costelli dismissed his appeal, leaving only the appeal of defendant City of University City for consideration.
This action was brought against Oliver C. Funsch, Carl Dinkelaker, Nick Costelli, William Berger, and the City of University City. The petition alleged that Funsch owned a building known as 6670 and 6672 Delmar Boulevard and that Dinkelaker operated a meat market and Costelli operated a fruit store in the building. Berger owned the property to the east, adjoining Funsch's property.
It is alleged that the two property owners negligently constructed a sidewalk between the curb line of Delmar Boulevard and the front of their buildings so there was an abrupt elevation at the line dividing their two properties, making the walk unsafe. Dinkelaker and Costelli were charged with negligence in placing baskets and trays of merchandise on the sidewalk so that the unsafe portion of the walk was concealed from the view of people using the area.
The petition also charged that the concrete walk in front of the store building has been used and accepted by the public for a number of years and that the City of University City knew, or should have known, of the unsafe condition that existed, and in the exercise of ordinary care should have repaired or in some way guarded it. It alleged their failure to do so and the resulting injury to plaintiff, who fell.
In their separate answers to the petition Dinkelaker and Costelli, the merchants, denied the negligence charged against them, and the two property owners, Funsch and Berger, in their answers stated that the area in front of their buildings had been accepted and used by the public as a public sidewalk.
The City of University City denied that the place where the plaintiff fell was a public sidewalk and disclaimed any duty to keep it safe for travel. The city also filed a cross-claim in which it asserted that all of the other defendants were in "exclusive ownership, possession and control" of the area in question and asked that the four other defendants be held accountable for the whole of any judgment against the city.
The city dismissed its cross-claim against the other defendants at the close of all the evidence, and the court directed a verdict for all defendants except Costelli and the City of University City.
Bertha Roth, the plaintiff, testified that she had been shopping on Delmar Boulevard and had gone to Dinkelaker's market to get some meat. His store was to the rear of the building owned by Funsch. As the plaintiff left the meat market she noticed some peaches displayed on tables in front of the building and after purchasing some she started to go to the east. As she did so she fell over a step-off in the pavement near the displayed peaches.
The general area where plaintiff fell is a strip of concrete paving in front of the building owned by Funsch and the adjoining property owned by Berger. The paving is about fifteen feet in width and is a concrete surface joining the sidewalk laid by the city along the south side of Delmar Boulevard. This area was paved and maintained by the property owners.
There was evidence that the general public used the area both to enter the store building and to walk eastwardly and westwardly upon it. August Berger, the proprietor of the hotel located on the east lot, said that the are both in front of the store and in front of the hotel was used by the public as a walk. The hotel was owned by August Berger's father and had been his property since 1923. On this property a considerable portion of the fifteen feet between the city maintained sidewalk and the building was taken up by a porch of the hotel with steps which extended down from it. There was evidence that the area in front of the building occupied by Costelli's fruit store was paved around the year 1914 from the building line to the curb of Delmar Boulevard. In 1915, a Mr. Luebke owned the property and operated a store within the building. He sold it in 1915 and the store was operated after that by a man named Pannell. In 1923 this building was occupied by a Christian Science Church, and from 1927 on it was used by Costelli and his predecessor as a fruit store. From 1927 to the time of the accident the area was used to display merchandise. Dinkelaker had a large sign bearing the name of his market mounted on a metal post in the center of the paved area.
The Funsch property, as originally plated, included the space in front of the present building which is on the established building line. There have been five deeds conveying title to the property since 1915, the last being dated March 1, 1944, and each of these deeds describe the property as platted with the exception of ten feet that was taken for the widening of Delmar Boulevard prior to 1915. The lease under which defendant Costelli occupied the property carried the same description as the deeds.
In 1939 Berger and a Mr. Strode, the then owner of the present Funsch property, signed an agreement, which was filed of record, abolishing the building line which up to that time had been fifteen feet south of the south line of Delmar Boulevard.
There was evidence that the taxes had been assessed by the city on the whole of both lots and that such assessments had been paid by the respective owners. In addition to the foregoing evidence, photographs were introduced showing the position of Dinkelaker's sign, the displayed merchandise in front of the building, and the different levels between the paving on the Berger and the Funsch properties. The porch on the Berger hotel had been removed prior to the time the photographs were taken.
The appellant contends that the court erred in not directing a verdict for the City of University City, in that the evidence was insufficient to prove that the space where the plaintiff fell was a public sidewalk. The respondent conversely asserts that there was sufficient evidence to establish an implied dedication of the area to the public, and that the city is therefore liable. Such a common-law dedication as the plaintiff sought to establish arises by operation of law where the property owner has by some act set aside part of his land for public use and it has been accepted and used by the public. There must, however, be a clear intent on the part of the owner to make the dedication, and when the intention to dedicate is absent no valid dedication takes place. Borchers v. Brewer, 271 Mo. 137, 196 S.W. 10; City of Hardin v. Ferguson, 271 Mo. 410, 196 S.W. 746; Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650; Haertlein v. Rubin, Mo.Sup., 195 S.W.2d 480.
The animus dedicandi, that is, the intention to dedicate, may be evidenced by acts of the owner such as would reasonably lead to the inference that he intended to dedicate his property to public use. Thus, it has been held that the intention to dedicate a public walk may be evidenced by the owner building a fence on his property paralleling a public street, but far enough back from the street line to leave a space for foot travel, Benton v. City of St. Louis, 217 Mo. 687, 118 S.W. 418; or, it may be evidenced by the construction of a walk about a yard wide abutting a public sidewalk where such privately constructed walk runs along the wall of a building for about a hundred feet. Callaway v. Newman Mercantile Co., 321 Mo. 766, 12 S.W.2d 491, 62 A.L.R. 1056. It may be evidenced by the owner constructing a sidewalk free of obstructions in front of a row of stores and connecting with a public street. Hanke v. City of St. Louis, Mo.Sup., 272 S.W. 933. The respondent in reliance upon these cases and upon Morgan v. Kroger Grocery Baking Co., 348 Mo. 542, 154 S.W.2d 44, asserts that a case was made for the jury.
It appears, however, that the facts in each of the cited cases differ in material respects from those with which we are confronted. The case of Benton v. City of St. Louis, 217 Mo. 687, 118 S.W. 418, 422, supra, involved a sidewalk which had been long in public use and which extended next to the north side of Bruno Avenue. It was separated from the adjoining land by a fence. On the question of dedication Judge Lamm, speaking for the Supreme Court, said:
"Speaking to that question in the light of the facts, there ought to be no doubt that the animus dedicandi existed; that is, that the abutters intended to dedicate the street for public use from side to side 50 feet wide. This conclusion, we think, reasonably follows from facts established by proof. For example, permanent fences, long maintained on either side, earmark a public street. Again, the fact that these fences are practically in line with the north and south fences of the continuation of Bruno avenue adds strength to that idea.
"In the next place, the practical abandonment of the whole 50-foot strip for many years by the abutting property owners and their failure to impress upon the strip the usual earmarks of private use and ownership, like possession, alienation, cultivation, etc., lend force to the conclusion by leading up to it. Especially so when such abandonment seems related and responsive to the public need of a street at that point because of the distance away of parallel streets and the number of people to be accommodated by a thoroughfare there."
It may be seen that the situation here is not analogous, for the porch of the Berger hotel occupied the greater portion of the east lot. There was no attempt on the part of the owner to make a continuous walk as each lot had been paved in front at its natural level, leaving a step-off between the two areas. There was a large sign at the approximate center of the Funsch pavement and the paving was not responsive to any public need for the public sidewalk upon which it abutted was thirteen feet wide and of even grade.
In the case of Callaway v. Newman Mercantile Co., 321 Mo. 766, 12 S.W.2d 491, loc. cit. 497, supra, the court said that the walk in question had been accepted by the city of Joplin and was constructed in accordance with specifications prescribed by the city's engineering department. The use of the walk by the public in that case was continuous and uninterrupted.
The area here was used and had been used as an open market for about twenty years. This fact also distinguished it from the situation in Hanke v. City of St. Louis, Mo.Sup., 272 S.W. 933, loc. cit. 935, supra, where "There was * * * no obstruction of any kind to unrestricted travel upon and along this sidewalk to or from the sidewalks on Easton avenue".
In the case of Morgan v. Kroger Grocery Baking Co., 348 Mo. 542, 154 S.W.2d 44, supra, the plaintiff sued the lessee for damages resulting from a fall on the pavement in front of its store. She had previously pleaded that the area was a public walk and her abandoned pleadings were in evidence. The lessee's lease excluded the place where the plaintiff fell. The converse of that situation is present here for the lease in question includes the area and the plaintiff was in fact marketing there at the time she fell. We find no case wherein there had been, as there were here, all the indications of private ownership, use and possession, holding that an intention to dedicate had been sufficiently established.
In a somewhat similar situation the Supreme Court held in Baker v. Squire, 143 Mo. 92, loc. cit. 98, 44 S.W. 792, 793: "The fact of the omission to build on the four feet of frontage when the edifice was constructed is not of itself evidentiary of a dedication, and if it could be so construed, it could not of become effective as such in the absence of proof of the further essential fact of acceptance thereof by the public. Becker v. City of St. Charles, 37 Mo. 13. As to that, the evidence is undisputed that the strip in controversy was used by the present and former tenants for the purposes of displaying merchandise kept in the building; that taxes were regularly paid thereon; and that at the time of the various sales of the lot the measurements of each deed called for this portion, and it was actually pointed out to the vendees as an integral part of the land acquired by them under their respective deeds."
The plaintiff, in apparent recognition of the fact that the area was privately used, seeks to have us hold that there had been a dedication to public use before 1927, and that such a dedication could not be revoked by subsequent private use from 1927 on. We do not need to deal with the revocation feature of this theory, for the evidence is insufficient to make the existence of such a dedication a jury question. There is no doubt that the front part of the east lot was always occupied by the porch of the Berger hotel and the west lot was occupied by merchants at all times except for a brief period of tenancy by a church. There is no evidence that the area to the front of the west lot was not put to private use in some manner by the owners and tenants prior to 1927. The use of it by the public without proof of an intent to dedicate was insufficient. State ex rel. McIntosh v. Haworth, Mo.App., 124 S.W.2d 653; Connell v. Jersey Realty Investment Co., 352 Mo. 1122, 180 S.W.2d 49, loc. cit. 53. "To constitute a common law dedication, the owner must have done something by act or by word which would unequivocally point to but one conclusion, namely, that the owner intended to dedicate to public use. Unequivocal means not doubtful, not ambiguous, clear, plain."
Viewing the evidence in a light most favorable to plaintiff and giving her the benefit of all permissible inferences therefrom, it appears that she failed to make a case against the City of University City.
It is contended that the court erred in making some remarks in the presence of the jury at the time the city dismissed its cross-claim, and instructions given and evidence excluded are also assigned as error, but since the case must be reversed, for the reasons stated, we need not pass upon these assignments.
It is the recommendation of the Commissioner that the judgment be reversed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.