author: WOODSON, P. J.

text:
    J. H. BAYLESS et al. v. JUSTUS GIBBS et al., Appellants.
    Division One,
    June 28, 1913.
    1. SWAMP LANDS: Sale for Fifty Cents an Acre: Void. Neither the county court of Butler county, nor any commissioner appointed by it, had any authority in November, 1867, to sell for fifty cents per acre any swamp lands lying within said county, granted to Missouri by act of Congress, and by the State donated to said county by the Act of 1853, Laws 1852-3, p. 108, “upon the terms and provisions” stated in the act of March 3, 1851, Laws 1850-1, p. 238; for said last act “provided that said scrip shall in no instance be sold for a less amount than one dollar per acre.” The clear purpose of the limitation was to prevent the swamp lands, donated to reclamation and school purposes, from being frittered away, and the county court had no more authority to sell them for less than the minimum price fixed by the law than it had to give them away; and a deed, made by the county commissioner in November, 1867, which recites that the lands were sold for fifty cents an acre, is null and void on its face.
    2. -: -: -: Powers of County Courts: Notice of Limitation. County courts are not general agents of their counties. They are courts of limited jurisdictions, with powers defined and limited by the statutes, which constitute their warrant of authority, and when they act outside of or in excess of ‘ their statutory authority, their acts are null and void; and all persons dealing with them, when they essay to act as agents of their respective counties, are bound to take notice of their powers. The county courts of Butler and the other nine counties named in the Acts of 1851, 1853 and 1855, were by those express statutes restricted from selling the swamp lands lying therein for less than one dollar an acre, and a deed Ipy a commissioner, 'appointed by the county court, made in November, 1867, which recited a consideration of fifty cents an acre, was null and void, and all persons who claim from the grantee therein, whether by conveyance or as heirs under the law of descents and distribution, are bound with notice that such deed was void. [Distinguishing Simpson v. Stoddard County, 173 Mo. 421, interpreting Act of March 27, 1868, Laws 1868, p. 68, and Act of March 10, 1869, Laws 1869, p. 66.]
    8.--: Title in Butler and Other Counties. The counties of Butler, Stoddard and the other eight counties mentioned in the Laws of 1854-5, p. 154, and the Act of March 3, 1851, Laws 1850-1, p. 238, until the passage of the Act of March 27, 1868, Laws 1868, p. 68, had no title to the swamp lands therein except as they held the title under the Act of February 23, 1853, Laws 1852-3, p. 108, “upon the terms and provisions” stated in the said Act of 1851; that is, they had no title of their own to said swamp lands until the passage of the said Act of 1868, and they had no power prior to said date to convey swamp lands for less than one dollar an acre. The statute found in Laws 1854-5, p. 160, pertaining to swamp lands generally, does not apply to the swamp lands in the ten counties mentioned in the statute found on page 154 of the same session laws, which last act is carried forward in the General Statutes of 1865, chap. 49, p. 277, section 19 of which provides that “the provisions of this chapter shall not extend to or be in force in the counties of Wayne, Butler, Stoddard,” etc., and that section remained in force until the passage of the Act of March 27, 1868, Laws 1868, p. 68.
    Appeal from Butler Circuit Court. — Hon. Jesse G. Sheppard, Judge.
    Reversed.

      N. A. Mosley, Leslie C. Green and Ernest A. Green for appellants.
    (1) The court erred in finding for the plaintiffs and against defendants. The patent under which plaintiffs claim title is void on its face, in that it shows upon its face that the land was sold for a less consideration than the county was authorized under the Swamp Land acts to sell same. Laws 1854-55, p. 154; Sec. 19, Chap. 48, G-. S. 1865, p. 280; Sec. 4, Chap. 109, C. S. 1865; p. 444; Laws' 1854-55, p. 160; Laws 1857, Adj. ses., p. 32; Laws 1868, p. 168; Simpson v. Stoddard County, 173 Mo. 421; State ex rel.' v. Crumb, 157 Mo. 545; Railroad v. Hatton, 102 Mo. 55; Sturgeon v. Hampton, 88 Mo. 203; Butler v. Sullivan County, 108 Mo. 630; Railroad v. Wayne County, 125 Mo. 351; Moss v. Kauffman, 131 Mo. 424; Hooke v. Chitwood, 127 Mo. 372; Tyding’s v. Pitcher,- 82 Mo. 379; State ex rel. v. Co. Ct. New Madrid Co., 51 Mo. 85; State . ex rel. v. Wayne Co. Ct., 98 Mo. 366; Wheeler v. Land Co., 193 Mo. 279. (2) The court erred in admitting in evidence the patent under which plaintiffs claim title, for two additional reasons, viz.: (a) There was no showing of any authority vested in the commissioner named to make the patent; and, (b) at the time of making same, Butler county had no title to the land in controversy. Sec. 4, chap. 109, G. S. 1865, p. 444; Funkhouser v. Mallen, 62 Mo. 555; Prior v. Scott, 87 Mo. 303; Cases under point 1.

      Henry N. Phillips and Abington <& Phillips for respondents.
    (1) The lands involved in this litigation are a part of what is known or commonly called ‘ ‘ the swamp or overflowed lands of Butler county, Missouri.” These lands with others were granted to Missouri by the United States by an act of Congress approved September 28, 1850, and were patented to the State by the United States prior to November 4, 1857. By an act of the Legislature, approved March 3, 1851, these lands were donated to the counties in which they were situated, excepting certain counties in Southeast Missour i, of which. Butler was one. Laws 1851, p. 238. But in 1853 the Legislature passed another act donating to the excepted counties, among which Butler was one, the swamp lands which were situated within their limits, respectively. Laws 1853, p. 108. The excepted counteis above referred to, among which was Butler, were not under or included within the operations or requirements of the general swamp land law. of the State until 1868. E. S. 1855, p. 1055, sec. 20; G. S. 1865, chap. 48, sec. 19. (2) It is difficult to discern the reason why appellant under point one in his brief cited Sec. 19, chap. 48, G. S. 1865, p. 280, or sec. 4, chap. 109, G. S. 1865, p. 444, as the first of these citations shows absolutely that the swamp land of Butler county was not governed by that law, as section 19 is as follows: -“The provisions of this chapter shall not extend to or be in force in the counties of Wayne, Butler, Stoddard” etc., and the second citation, section 4, provides for the appointment of a commissioner to dispose or sell any real estate belonging to the county, but that did not apply to swamp lands as has been decided time and again by this court, to the effect that the swamp lands were not the general property of the county. State ex rel. Bobbins v. New Madrid County, 51 Mo. 83; Sturgeon v. Hampton, 88 Mo. 203. (3) The control of the swamp land in the excepted counties, of which Butler was one, was placed in the county courts and the office of register and receiver was provided for, and the lands could be sold at the discretion of the county courts, and in Bollinger, Butler, Dunklin, Stoddard and.one or two ■others land could be sold as low as fifty cents per acre, or, as for that matter, at any price which the county court saw proper to make. Linville v. Bohannon, 60 Mo. 558; Pool v. Brown, 98 Mo. 684; Gregg v. Hall, 138 Mo. 290; Simpson v. Stoddard County, 173 Mo. 444. <(4) On March 1, 1855, the Legislature enacted a' law in relation to swamp lands concerning the counties of New Madrid, Pemiscot, Mississippi, Scott, Cape Girardeau, Stoddard, Wayne, Ripley, Butler and Dunk-lin, in the management of their swamp lands, which was the law concerning the control of these lands in said counties, with certain modifications thereto made in 1857 and 1859 on until the general law of 1868 was passed and was in force at the time the commissioner’s, deed in this case was made and recorded. Laws 1855,. p. 154-159. (5) The Legislature of the State passed another law, February 28, 1855, as follows: “Sec. 1. That the several county courts of the State are hereby authorized to sell and dispose of the swamp or overflowed lands within and for the respective counties,, either with or without draining and reclaiming the same, as in their discretion they may think most conducive to the interests of said counties,” thereby giving the county courts a free rein and the absolute control of these lands both as to the price and method of sale, and this act was never repealed or even modified until the general law of 1868 was enacted, and therefore the Act of February 28, 1855, was in full force and effect when the commissioner’s deed to Bayless was made and recorded in November, 1867. (6) Appellant’s second contention is that at the time Addy made the commissioner’s deed to Bayless, Butler county had no title to its swamp lands. In regard to that contention we say: The swamp lands were granted or donated by the State to the county of Butler in 1853 as shown above, and again by an Act of 1855 and again by an Act approved November 4, 1857, and the county court could- dispose of them as they saw fit. Act of December 13, 1855; Act of November 4, 1857, p. 32; Act of February 28, 1855; Laws 1856-7, pp. 349, 350, 351, 360; Laws 1855, p. 160; Barton County v. Walser, 47 Mo. 197; Sturgeon v. Hampton, 88 Mo. 203; Linville v. Bohannon, 60 Mo. 558; Pool v. Brown, 98 Mo. 684; Simpson v. Stoddard ■ County, 173 Mo* 443; State ex rel. v. Wayne Co. Court, 98 Mo. 306.
   WOODSON, P. J.

This was a suit instituted in the circuit court of Butler county by the plaintiffs against the defendants, under section 650, Revised Statutes 1899, to quiet title to a certain quarter section of land situate in said county, and particularly described in the petition. The petition also contained a second count in ejectment for the possession of the land.

A trial was had which resulted in a judgment for the plaintiffs on both counts of the petition; and after moving unsuccessfully for a new trial, the defendants appealed the cause to this court.

Counsel for appellants have made a clear and terse statement of the case, which counsel for respondents say is correct, and for that reason we will adopt that statement as our statement of the case, which is as follows:

“This is an action instituted in the circuit court of Butler county, Missouri, to quiet title and in ejectment. The petition is in two counts, the first count, being an ordinary action to try title under section 650,. Revised Statutes 1899, and the second an action in ejectment. The land involved lies in.Butler county, Missouri, and is described as follows:
“The northeast quarter of the southwest quarter of section twenty-eight, township twenty-five, range seven east.
“The answers of the respective defendants denied that plaintiffs had any title, estate or interest in the land involved, and averred that the defendant Justus Gibbs was the sole and absolute owner in fee simple of the premises described, subject only to a deed of' trust given by defendant James V. Webb to his co-defendant, Ernest Bacon, to secure the payment of a promissory note for $300. The defendant, Justus Cribhs, admitted that he was in possession of the real ■estate described in the petition, but both defendants 'Webb and Bacon specifically denied that they were in the possession thereof.
“The cause was tried at the October term, 1909, •of the Butler Circuit Court, and on the 3d day of December, 1909, and during the same term, the court rendered judgment in favor of the plaintiffs on both •counts of their petition. The judgment found plaintiffs to be the owners of the premises described in their petition, and also found defendants guilty of trespass- and ejectment, assessed plaintiffs’ damages at the sum of one dollar and monthly rents and profits .at five dollars per month until plaintiffs be restored to possession.
‘ ‘ On the trial, the testimony showed Butler county to be the "alleged common source of title. Plaintiffs thereupon offered in evidence a commissioner’s deed from Chas. W. Addy, commissioner, to John Bayless, •dated November 15', 1867, and recorded November 27, 1867, in the deed records of Butler county, Missouri. This deed recited a conveyance of one hundred and •sixty acres of land, at fifty cents per acre, consideration eighty dollars. This deed was objected to by de-. fendants for three reasons, viz.: (1) There was no •showing of any authority vested in the commissioner named to make the conveyance for the county; (2). that at the time of the conveyance, Butler county had no title; (3) that the deed on its face was void, in that the land was sold for a less consideration than counties were authorized under the Swamp Land acts to ■sell for at that time. The court sustained the objection on ..the sole ground that no authority for the commissioner to make the deed was shown. Thereupon plaintiffs offered a record of the county court of Butler county, of date January 18, 1866, reading as follows :
“ ‘It is ordered by the court that Charles W. Addy he and is hereby appointed swamp land commissioner, and that he give bond as required by law.’
“This offering was objected to, as being insufficient to authorize Charles W. Addy to make this particular patent, and the objection was overruled by the court, to which defendants excepted. Thereupon the commissioner’s deed was again offered by the plaintiffs, and defendants renewed their objections thereto, which were overruled by the court, and defendants excepted.
“John H. Bayless, one pf the plaintiffs, thereupon testified that John Bay less, to whom this land was patented, was now dead and that plaintiffs were his heirs.
“It was thereupon admitted by defendants that defendant Justus Gibbs was in possession of this land, but expressly denied that the other defendants were.
“This was all the evidence introduced by the plaintiffs, and thereupon defendants offered in evidence county court record of December 8, 1874, directing Charles W. Addy, commissioner of patents, to issue a patent to the St. Louis, Iron Mountain & Southern Eailway Company for this land. Defendants next offered a certificate of purchase from Butler county, by Charles W. Addy, commissioner, to the St. Louis, Iron Mountain & Southern Eailway Company, dated December 21, 1874, and conveying this land.
“Defendants’ next offering was a general warranty deed from the St. Louis, Iron Mountain & Southern Eailway Company to defendant James Y. Webb, -dated October 17, 1902, and conveying the premises in suit. Defendants next offered a general warranty deed from defendants James V. Webb and wife to co-defendant Justus Gibbs, dated December 31, 1904, and conveying the premises in suit. They also offered in evidence a deed of trust from defendant James Y. Webb and wife to defendant Ernest Bacon, to secure a promissory note for $300, dated December 30, 1904, and conveying this land.
“Defendants also offered tbe oral testimony of County Clerk M. J. Armstrong’, and tbe records of tbe county court between January 18, 1866, and November 15, 1867, showing- that no bond was ever filed by Charles W. Addy, the commissioner named in plaintiffs’ deed, and that there was no order made at any time directing Charles W. Addy, commissioner, to make a patent to John Bayless, under which plaintiffs claimed title.”

This was all the evidence in the case, and thereupon the court rendered judgment for the plaintiffs on both counts of the petition, as previously stated.

I. Counsel for appellants ask that the judgment be reversed for five reasons assigned.

We will state and consider them in the order stated in their brief. ’

The first is stated in these words:

“The court erred in finding for the plaintiffs and against defendants. The patent under which plaintiffs claim title is void on its face, in that it shows upon its face that the -L land was sold for a less consideration .than the county was authorized under the Swamp Land acts to sell same.”

This land is a portion of the great body of swamp and overflowed lands originally granted by the United States to the State of Missouri, by an act of Congress approved September 28, 1850.

This State by an act of the Legislature approved February 23,1853 (Laws 1852-3, p. 108), donated these lands to Butler county, “upon the terms and provisions” stated in an act of the Legislature approved March 3, 1851 (Laws 1850-1, p. 238).

This, as well as the succeeding proposition contended for hy counsel for appellants, calls for a careful consideration of the acts of the Legislature previously mentioned.

As regards this proposition: Section 1 of the Act of 1853, in so far as is here material, reads as follows :

“That all the swamp lands, lying in the counties of Scott, New Madrid, Pemiscot, Mississippi, Cape Girardeau, Stoddard,. Dunklin, Ripley, Butler and Wayne, are hereby donated to the counties in which they lie, upon the terms and provisions of the act entitled ‘An act donating certain swamp and overflowed lands to the counties in which they lie, ’ approved March 3, 1851.”

We must not lose sight of the fact that the act of Congress mentioned granted these lands to the State of Missouri for the benefit of the public schools of the State, also of the fact that the section of the act of the Legislature just quoted donates said lands to the counties named, in which they are situate, “upon the terms and provisions of an act entitled ‘An act donating certain swamp and overflowed lands to the counties in which they lie,’ approved March 3, 1851.” (The italics are ours and the materiality of which will be later -considered.)

The former act, after providing a scheme and the means for the reclamation of said lands, in section 9 thereof provides as follows:

“That either of said counties as shall unite together for the reclamation of their lands, shall have full jpower to issue land scrip and sell the same, in order to raise funds for the prosecution of their works of reclamation,- which said scrip shall entitle the holders thereof to a certificate for the amount of acres after the location of the same, that the same may call for, and a patent shall issue therefor; provided that said scrip shall in no instance he sold for a less amount than one dollar per acre.
“This act to,take effect and be in force from and after its passage.”
“Approved February 23, 1853.”

The italics are ours.

The provision of this section is clear, terse and unambiguous, and is not for that reason susceptible of construction. It states what it means and means-what it says, namely: “That said scrip shall in no instance be sold for a less amount than one dollar per acre.”

The clear purpose of this limitation upon the-power of the county courts of the respective counties named was to prevent just what was here attempted to be done, that is, to fritter these lands away and thereby frustrate the twofold object the Legislature had in view at the time of its enactment, namely, the reclamation of the land for agricultural purposes and the procurement of funds for the use and benefit of the public schools of the State.

Now, if this statute .may thus be violated, and these swamp lands of the State be disposed of for fifty cents on the dollar, then by parity of reasoning they may be disposed of for nothing, for there is no difference in principle between selling them for one-half of the price’ fixed by the statute and in disposing of them for nothing ; the latter is simply double the length of the illegal step of the former, differing in degree, but not in principle.

- The same principle of limitation upon the exercise of power by a court, was decided in the case of State ex rel. v. Williams, 221 Mo. 227. That was an original proceeding in prohibition, in Banc, seeking to prohibit Judge Williams of the circuit court of the city of St. Louis from further entertaining jurisdiction of a certain injunction suit then pending therein, wherein the State of Missouri at the relation of Seebert G-. Jones, circuit attorney of said city, was plaintiff, and the Missouri Pacific Eailway Company, and many others, were defendants. The facts of that case are not here material. Upon the presentation of the-petition, duly verified by affidavit, said court, without requiring the plaintiff to give the bond required by section 3637, Eevised Statutes 1899, but in plain violation thereof, issued á temporary injunction against the defendants. The material parts of that statute-read as follows:

“No injunction, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the State in its own behalf, until the plaintiff, or some. responsible person for him, shall have executed a bond with sufficient surety or sureties to the other party, in such sum as the court or judge shall deem sufficient. ’ ’

While the court was divided as to whether or not that suit was a “suit instituted by the State in its own behalf” within the meaning of the statute, the majority holding that it was not, however, it was unanimously of the opinion that in all other cases, except those stated in the exception, the court had no power or authority to issue an injunction therein unless the'plaintiff or someone for him should first give the bond required by said statute, and consequently prohibited said court from further entertaining jurisdiction over said cause.

The limitation of the authority of the circuit court of the city of St. Louis to issue injunctions unless the plaintiff first gives the bond required by said section 3637, is no more imperative and mandatory than is the limitation imposed upon the power of the county courts of the counties mentioned in said Act of February 23, 1853, to sell said lands for a sum not less than one dollar an acre.

And in the case of Cape Girardeau South Western Railway Co. v. Hatton, 102 Mo. 45, 1. c. 55, this court in regard to these lands said:

“The swamp lands are the absolute property of the counties in which they are situate; but the counties' hold them for purposes designated in the law, and they must be sold for the purposes and in the manner pointed out by the law concerning swamp lands. [Sturgeon v. Hampton, 88 Mo. 211; State ex rel. Robbins v. County Court, 51 Mo. 84.] The county courts may cause the swamp lands to be sold, with or without drainage, at public or private sale; but they must be sold for not less than $1.25 per acre. [R. S. 1879, sec. 6153.] The proceeds are applied to purposes of reclamation, and the surplus, if any, goes to the school fund. [Sec. 6155.]”

These cases are direcetly in point and are controlling in this.

II. Moreover, and independent of the Williams case, if we have not correctly stated the plain meaning of section 3637, Revised Statutes 1899, and sections 1 and 9 of the Act of February 23, 1853, then they have no meaning whatever, because no other construction can be placed upon them, except what they themselves plainly express, namely, that said lands shall not be sold for less than one dollar per acre.

But counsel for respondent cite us to the case of Simpson v. Stoddard County, 173 Mo. 421, and insist that it announces a doctrine contrary to that just stated. While it is true, there is some general language used therein which, read alone, might be construed to announce views different from those here expressed, yet a critical examination of the facts of that case will show that it was decided upon grounds radically different from those involved in this, and we might properly say that the language mentioned was more obiter than authoritative, for the reason that it is disclosed by the record in that case that the sale and conveyance of the land therein considered were made after the passage of the Act of March 27, 1868 (Laws 1868, p. 68), and the Act of March 10, 1869 (Laws 1869, p. 66). These were the acts Pox, J., had in mind when he used the following language on page 448, in the Simpson case:

“The whole previous system of the State in regard to these lands was changed, by general law applicable to every county in the State by which a complete title was to be vested in each county by a patent to be issued for the swamp land therein situate, and thenceforth the State delegated to each county the execution of its trust as to the land situate in each county . . . and thereafter the swamp lands in said county were subject to sale and conveyance by the county under the provisions of the general law expressed in those acts.”

But in the ease at bar, the sale and conveyance were made prior to those enactments, and while an Act of March 1, 1855 (Laws 1854-5, pp. 154-159), entitled, “An Act in relation to swamp lands in the counties of New Madrid, Pemiscot, Mississippi, Scott, Cape Girardeau, Stoddard, Wayne, Ripley, Butler and Dunklin,” was in full force and effect.

It cannot, therefore, be truly said as Judge Pox held in that case, that “the previous system of the State in regard to these lands was changed, by general law applicable to every county in the State.” Nor does this act purport to repeal or amend the Acts-of 1851 and 1853, previously mentioned (without it is done so by implication), although all of them relate to the same lands, their salé, reclamation, etc.

There appears to be some inconsistencies and incongruities existing between these various acts, which would take careful consideration to reconcile. Since, however, they are not specially material to the merits •of this case, I will pass them by with the passing remark that I devoted much time and care to the Act of 1855 in the case of Mosher v. Bacon, 229 Mo. 338, and for that reason I will steer clear of everything contained in said acts, except such as bear directly upon the merits of the case at bar.

With these preliminary observations regarding the various acts mentioned, I will return to the sale .and conveyance of the land involved in this suit, which •as stated, were made prior to the passage of the Acts ■of 1868 and 1869, previously mentioned.

The exception of Butler county and the other nine mentioned in the Acts of 1851, 1853 and 1855, was carried forward, and was incorporated into section 19 of chapter 48 of the General Statutes of 1865. This, •of course, renders said Acts of 1868 and 1869, wholly immaterial to the merits of this case. •

We must, therefore, turn to the Act of 1855, and those of 1851 and 1853, to ascertain the validity of the deeds of conveyance involved in this case.

This court, in numerous cases, has repeatedly held, that the county courts of the respective counties of the State are not the general agents of the counties of the State. They are courts of limited jurisdictions, with powers well defined and limited by the laws of the State; and as has been well said, the statutes of the State constitute their warrant of authority, and when they act outside of and beyond their statutory ■ authority, their acts are null and void.

Consequently, this court has also repeatedly held, that all persons while dealing with said courts or agents are bound to take notice of their powers and authority.

Among the cases so holding are the following: Sturgeon v. Hampton, 88 Mo. 203, 1. c. 213; State ex rel. v. Crumb, 157 Mo. 545; Cape Girardeau South Western Railway Co. v. Hatton, supra; Wheeler v. Reynolds Land Co., 193 Mo. 279; Moss v. Kauffman, 131 Mo. 424; Hooke v. Chitwood, 127 Mo. 372.

If we should apply the rule announced in these ■cases to the undisputed facts in the case at har, which we must do, then the act of the county court of Butler ■county, acting through its commissioner, in selling the lands in controversy, for fifty cents an acre, was absolutely null and void, and the deed purporting to convey the same to John-Bayless, respondents’ ancestor, was likewise null and void, and conveyed no right, title or interest in or to the same to him, and consequently he- had no interest therein to transmit under the statutes of descent and distribution to respondents, his heirs at law.

Counsel for respondents insist that this conclusion is also in contravention of the rule announced by this court in the case of Simpson v. Stoddard County, supra. This insistence is a misconception of that particular portion of that opinion.

In that case, our late beloved brother who wrote the opinion therein predicated the same upon the theory that because the invalidity of the consideration paid for the land there involved was not apparent upon the face of the deed or patent, the same should be and was held valid until set aside, for that reason, in a direct proceeding instituted by the county, in a court of competent jurisdiction for that purpose.

"While I do not indorse that doctrine, and, if I correctly understand the later decisions of this court, which will be presently noted, neither does it, yet we -are not forced to go to the extent of overruling that ■case upon this point, in order to hold the patent to John Bayless in this case invalid, for the simple rea-’ son that in this patent to Bayless the invalidity of the consideration paid for the land in controversy appears upon the face thereof, which fact, if the language of Judge Fox used in the Simpson case is followed, must of necessity require us to hold that this patent is absolutely null and void upon its face, without the institution of any legal or equitable action or proceeding to have it so declared.

But speaking for myself, I am firmly of the opinion that such a sale of s,uch lands is absolutely null and void, for want of authority in the county court to make the same; and that the appearance of or absence of the invalid consideration from the face of the patent is wholly immaterial, for in my opinion it is the want of authority, however proven, on the part of the county court to make such a sale, and not the mode by which that fact appears or is established, that renders, the sale void.

This is true, for the reason, previously stated,, that the county court being a public agent, exercising only statutory powers, all persons dealing with it must take notice of its acts, as well as the authority by which it so acts.

Besides that, in the Simpson cas.e, the Act of 1854-5 (Laws 1854-5, p. 154), was entirely overlooked, for it is there said that prior to the Act of 1868 there was no limitation whatever upon the power of the county courts, as to the price at which these lands could be sold, at either private or public sale. This statement is contradicted by all the acts previously mentioned.

And in this connection we wish to add that there is some language used in the Simpson case, not supported by the acts and statutes mentioned, which is misleading, and creates much confusion therein.

It is there stated that the Act of February 28,. 1855 (Laws 1854-5, p. 160), by which the several county courts of the State were “authorized to sell and dispose of the swamp and overflowed lands within their respective counties, either with or without draining and reclaiming the same, as in their discretion they might think conducive to the interests of said counties,” applied to Stoddard and Butler counties. It is also there stated, that the Act of November 4, 1857 (Laws 1857, adj., 32), by which all the swamp lands situate in this State selected by virtue of the Act of •Congress of September 28, 1850, were “declared to vest in full title, and belong to the counties in which they may lie,” applied to Butler and Stoddard counties.

While the language of that act, if read and considered alone, is sufficiently broad and comprehensive to bear the construction there stated, yet when we consider the act, its history and its relation to other acts bearing upon the same subject, enacted about the same time, and some of them prior and others subsequent thereto, then we feel satisfied that the construction placed upon it by the majority of the court in the Simpson case was not the real intention of the Legislature or the real meaning of the act.

• Briefly, there are several reasons for so saying.

In the first place, those acts were carried into the revision of 1865 (G. S. 1865, p: 277, et seq.); and section 19 of chapter 48 thereof provides that “the provisions of this chapter shall not. extend to or be in force in the counties of Wayne, Butler, Stoddard, Dunklin, Pemiscot, New Madrid, Mississippi, Scott, Cape Girardeau and Ripley.”

It is also manifest from the face of the acts themselves, that it was the intention not to amend the laws applicable to these ten counties, but to those counties only to which the original Act of March 3, 1851, was applicable. This is specially shown by reading' the Laws of 1854-5, p. 160, and Laws 1857,adj., p. 32, which .amend the law only in so far as it applied to the original lands embraced in the Act of 1851, Laws 1850-1, p. 238.

Also by inspecting these acts, it will be seen that "the Act of 1854-5, p. 154, prescribing. the mode and maimer for selling the swamp lands in the ten counties named, was enacted subsequent to the two acts found •on page 160 of the same Session Laws, regarding the swamp land generally, thereby showing conclusively that the Legislature did not intend that the swamp lands in those counties should be governed by laws applicable to the swamp lands generally of the State.

Judge Pox makes no mention of the Act of 1854-5, p. 154, supra; evidently he overlooked it, and only considered the other acts of the Legislature which are general in terms applying to all swamp lands except these in these counties, and had it not been for the exception stated in that act, his conclusion would have been right; but having overlooked it, his conclusions were erroneous, in my opinion.

These views are in perfect harmony with those expressed by this court in the case of Wheeler v. Reynolds Land Co., 193 Mo. 279, where Valliant, J., in speaking for the court, on page 290, said:

“The plaintiff refers to Simpson v. Stoddard County, 173 Mo. 1. c. 458-9, wherein it is said that a patent to swamp lands from the county, regular on its face and based on orders of the county court, is valid until set aside by appropriate proceedings; that: ‘It is not absolutely void, but may be avoided in an action for that purpose, upon a showing of independent, unauthorized acts upon which the instrument is based.’ And it is contended that that means that the patent is valid until it is set aside in a suit instituted by the county for that purpose. But- that is not what the court said in that case, and is not what was meant. If that were the law, then a party who held a valid patent from the county could have no relief from another patent that may have been issued by the county which, though fair on its face, was founded on a false bottom, until the county itself might see fit to interfere. If the county had conveyed its title by another patent that was valid, it had no further interest in the land and unless the other patent contained some covenant or agreement, express or implied, which would render the county liable for a bre’ach, the county would have no such interest as would enable it to maintain a suit to set aside the alleged unauthorized patent. But whether the county could'or could not sue,, the party who held the valid title could sue to defend his own title or to put it at rest. ’ ’

Further in the same case, Yalliant,-J., uses this-language, 1. c. 292:

“But where the common source was a public trustee who was authorized to sell only for a valuable consideration, yet, who, in disregard of the trust, essayed to convey the property as a mere gift, a party holding a deed from the trustee executed in good faith for a valuable consideration is entitled, in a suit in which the respective titles are the subject of adjudication, to show the total want of consideration in the-deed of gift in order to have it adjudged invalid.”

This language of Judge Yalliant is specially applicable to the facts of this case, and for the reason there stated the Bayless patent in this case should beheld void.

We, therefore, hold this patent to he void, and that it was ineffectual to convey any right, title or interest in and to the lands in controversy, to John Bay-less, and, therefore, he had no interest therein, which respondents, his heirs, could have inherited.

III. Counsel for appellants urge two other objections to the validity of the patent from Butler county by Addy, the commissioner, to Bayless, the ancestor of respondents, and the person. w^om they claim title; first, because the record does not show any authority vested in the commissioner to make the patent; and,, second, that at the time the patent was issued to Bay-less, Butler county had no title to the lands therein described and purported to be conveyed thereby — that, is, in its own right, as was held in the Simpson case, but it did hold the title under the Act of 1853 “upon the terms and provisions, as therein stated.”

The decision of the first objection urged is not necessary for a proper determination of the case, but if it were, it seems to me, from the limited light I have upon the question, that if valid, it would cut much deeper than the point suggested by counsel for appellants. In fact, it would penetrate the vitals of appellants’ own case, for as I understand this record, they claim under a patent issued by the same commissioner, and that too, without any additional showing of authority upon his part, to issue the same.

But we will not decide that question, because as previously stated, it is not necessary, and for the further reason that it has not been fully and clearly presented.

Attending the second objection:

If what we have stated and held the law to be in paragraph two of this opinion is correct, then this objection must of necessity be sustained, because, if it is true, as there held, namely, that the Acts of 1854-5, p. 160, and 1857, adj., p. 32, did not apply to the ten counties named in the Act of 1851, Laws 1850-1, pages 238 to 240, Butler county being one of them, then clearly that county had no title of its own to said land, on November 15, 1867, at the date of the patent by Addy to Bayless, and never acquired title thereto until the passage of the Act of March 27, 1868 (Laws 1868, p. 68), supra. .

Following the ruling announced in the previous paragraph, we hold that the patent from Butler county by Addy, commissioner, purporting* to convey this land to Bayless, conveyed no right, title or interest whatever in or to the land described therein to John Bayless, the ancestor of respondents, and through whom they claim title to this land by inheritance; also that respondents have no interest or title in or to said land of any character.

IV. The conclusions reached and announced in the previous paragraphs of this opinion fully dispose ■of all the questions regarding the first count of the petition; and having there held that the respondents have no right, title or interest in or to the lands in controversy, it necessarily follows therefrom that they were not entitled to the possession of the land or to the judgment awarding it to them; and for that and for the other reasons stated, we reverse the judgment of the circuit court as to both counts of the petition.

Lamm, J., concurs, except as to what is said regarding the Simpson case; Bond, J., concurs; Graves, J., concurs in result.


source: Caselaw Access Project

license: Public Domain

text:
    J. H. BAYLESS et al. v. J. V. WEBB, Appellant.
    Division One,
    June 28, 1913.
    For tbe reasons stated in Bayless v. Gibbs, ante, page 492, the judgment in this case is reversed.
    Appeal from Butler • Circuit Court. — Hon. Jesse C. Sheppard, Judge.
    Reversed.

      N. A. Mosley, Leslie G. Green and Ernest A. Green for appellant.

      Henry N. Phillips and Abington & Phillips for respondents.
   WOODSON, P. J.

This is a companion case of Bayless v. Gibbs, ante, p. 492; and the plaintiffs therein are the same here, and the defendant Webb, there, is the sole defendant here.

The action was instituted in the circuit court of Butler county, by the plaintiffs against the defendant, under section 650, Revised Statutes 1899, to quiet the title to a certain tract of land situate in said county, and particularly described in the petition.

A judgment for the plaintiffs was the result of a trial had, and defendant having unsuccessfully moved for a new trial, appealed the cause to this court.

The facts of the two cases are precisely alike, except this suit involves a different tract of land, and Gibbs and Bacon, defendants in the other case, are not parties to this.

The two cases were argued together, ánd counsel in printed and oral argument state that the decision in the one case would necessarily dispose of the other.

After a full hearing and a careful consideration of the other case, we reached the conclusion that plaintiffs therein had no right, title or interest in or to the land there in controversy, and consequently reversed the judgment of the circuit court without remanding the cause.

So, under the facts and circumstances, the judgment of the circuit court in this case is also reversed.

Lamm, J., concurs in all except what is said of the Simpson case. - Bond, J., concurs; Graves, J., concurs in result.


author: GRAVES, J.

text:
    CHARLES DOUGHERTY, By Next Friend, RICHARD DOUGHERTY, Appellant, v. CITY OF ST. LOUIS et al.
    Division One,
    June 28, 1913.
    1. OBSTRUCTION OF HIGHWAY: Storing Lumber: Reasonable Length of Time. The owners of an inclosed lot, used for storing second-hand lumber, have no right to store such lumber on a strip of ground between the inclosing fence and the sidewalk. The doctrine of the reasonable temporary obstruction of public streets by abutting property-owners, for instance, by loading and unloading manufactures from a factory, or in building new or repairing old buildings, has no application to such a case; and in a suit for injuries to a child caused by the falling of a pile of lumber so stored in the public street, an instruction embodying the idea that the abutting property-owner had a lawful right to obstruct the street for a reasonable length of time, and that both he and the city became liable . only after the pile of lumber had remained in the street more than a reasonable length of time, was error.
    2. -: -: Notice. The act of the abutting property-owner in storing lumber in a public street is unauthorized, and he is not entitled to notice that the obstruction was dangerous to children playing about it. But in order to hold the city liable for injuries to a child caused by the falling of the pile of lumber, it must be shown that the city had notice of its existence in the street, or that it had remained in the street sufficiently long enough to constitute notice to it or its officers; but the court should not tell the jury that the fact that the lumber remained in the street “about three days” in law constituted notice to the city.
    Appeal from St. Louis City Circuit Court. — Hon. William B. Homer, Judge.'
    Reversed and remanded.

      O. F. Karbe and S. C. Rogers for appellant.
    (1) Tire court erred in refusing to give instruction numbered one, offered by plaintiff, and in changing and modifying same and giving to the jury in its changed and modified form. The court erred in giving instructions numbered five, six, seven, eight, nine, ten and eleven, offered by defendants Riechers. Perrigo v. St. Louis, 185 Mo. 274; Commonwealth v. Mc-Naugher, 131 Pa. St.- 55; 15 Am. & Eng. Ency. Law (2 Ed.) 444, 492-3; Coffey v. Carthage, 186 Mo. 573; Kossman v. St. Louis, 153'Alo. 293; Bassett v. St. Joseph, 53 Mo. 290; Brennan v. St. Louis, 92 Mo. 482; Hull v. Kansas City, 54 Mo. 598; Troll v. Cement Co., 160 Mo. App. 507; Nagel v. Railroad, 75 Mo. 653; Burger v. Railroad, 112 Mo. 238; Sydnor v. Arnold, 122 Ky. 557; Barrows on Negligence, p. 18; Heberling v. Warrensburg, 204 Mo. 613; Russell v. Columbia, 74 Mo. 494; Barr v. Kansas City, 105 Mo. 560; Graney v. St. Louis, 141 Mo. 180; Maus v. Springfield, 101 Mo. 613; Chilton v. St. Joseph, 143 Mo. 192; Straub v. St. Louis,-175 Mo. 413; Busse v. Rogers, 64 L. R. A. 183, 120 Wis. 443; King v. Troy, 104 N. T. 344; Rachmel v. Clark, 205 Pa. St. 314, 62 L. R. A. 959; Buttron v. Bridell, 228 Mo. 622; Fullerton v. Fordyce, 121 Mo. 1; Roberts v. Railroad, 153 Mo. App. 638.

      William E. Baird and Robert Burkham for respondent City of St. Louis.

      Muench, Walther & Muench for other respondents.
    (1) An abutting owner has-the right to use a part of the highways for the receiving of freight, or the temporary deposit of articles .connected with his business, so long as such temporary use does not unreasonably interfere with travel. Gerdes v. Foundry Co., 124 Mo. 347; Watson v. Railroad, 69 Mo. App. 548 ; McRee v. Peters, 142 Mo. App. 286; Davis v. Thompson, 134 Mo. App. 13; Dillon on Municipal Corporations (4 Ed.), sec. 730. (2) There is a difference between the paved and unpaved portions of a sidewalk, with respect to the use by the abutting owner and the public, respectively. Bassett v. St. Joseph, 53 Mo. 303; Fritz v. Kansas City, 84 Mo. 632; Craig v. Sedalia, 63 Mo. 417; Brown v, Glasgow, 57 Mo. 156; Kling v. Kansas City, 27 Mo. App. 231. (3) While the occupancy of a sidewalk by an abutting owner must not extend beyond a reasonable space of time, what is a reasonable time is to be determined by the circumstances of each case and is a question of fact for the jury. Hesselbaeh v. St. Louis, 179 Mo. 523; Loth v. Theater Co., 197 Mo. 328; Gerdes v. Foundry Co., 124 Mo. 355. (4) The pile of lumber in question, placed there by the' abutting owners under the circumstances shown in evidence, was not a nuisance “per se.” Hesselbach v. St. Louis, 179 Mo. 505; Gerdes v. Foundry Co., 124 Mo. 347; Seibert v. Railroad, 188 Mo. 657; Loth v. Theatre Co., 197 Mo. 328; O’Hara v. Gas Light Co., 244 Mo. 395. (5) The negligence declared upon in plaintiff’s petition was the alleged careless manner of piling the lumber and plaintiff could not therefore recover upon any other ground. The case must be disposed of in this court upon the theory upon which it was tried below. Hesselbach v. St. Louis, 179 Mo. 524; O’Hara v. Gas Light Co., 244 Mo. 395. (6) A pile of lumber could not be considered as a dangerous contrivance which is tempting to children, and the “turn-table” cases do not apply. O’Hara v. Gas Light Co., 244 Mo. 395; Kelly v. Benas, 217 Mo. 1; Friedman v. Snare, 71 N. J. L. 605; Powers v. Bridge Co., 89 N. T. Supp. 1030; Witte v. Stifel, 126 Mo. 295; Stone v. Railroad, 96 N. Y. Supp. 810; Kreiner v. Straubmueller, 30 Pa. Sup. Ct. 609; Railroad v. Cline, 111 111. App. 416. And the plaintiff in going upon the lumber was guilty of trespassing, Witte v. Stifel, 126 Mo. 295; Schmidt v. K. C. Dist. Co., 90 Mo. 284; Moran v. Pullman Co., 134 Mo. 64L “The turn-table cases are anomalous, and it is the practice of the courts to carry their doctrine no further than the previous conditions compel.” O’Hara v. Gas Light Co., 244 Mo. 407; Witte v. Stifel, 126 Mo. 295; Barney v. Railroad, 126 Mo. 372.
   GRAVES, J.

Charles Dougherty, a boy of ten years, sues through his next friend, to recover from defendants for personal injuries received by him-when a pile of lumber in the street fell upon him. The suit was against the city of St. Louis, the two co-partners in the business firm of J. P. Riechers & Son, and the Dimple Realty Company. The latter was dismissed by the trial court upon a demurrer to the testimony and it is conceded in the briefs here that such ruling was correct. Upon trial a jnry returned a verdict for the other defendants and from that verdict and the judgment entered thereon the plaintiff has appealed. The negligence charged is thus stated in the petition:

“Plaintiff for cause of action states that on the eleventh day of February, 1909, St. Louis avenue in said city of St. Louis and the sidewalks pertaining thereto constituted an open public highway of said city; that the premises heretofore mentioned abutted on said public highway, to-wit, St. Louis avenue, and were surrounded and enclosed by a board fence; that on the day and date above mentioned, and for several days prior thereto, defendants J. P. Riechers, Charles P. Riechers and the Dimple Realty Company owned and maintained a pile of heavy lumber on the St. Louis avenue side of said premises, and on the open public highway, said pile of lumber being about fifteen feet in length, about five feet wide and about eight feet high, and extended outwardly from said fence a dis1 tance of about five feet on the public highway; that it was the duty of said city of St. Louis to keep its sidewalks free from nuisances and dangerous obstructions and in reasonably safe condition to persons lawfully on said street; that the fact of said lumber being on said sidewalk was known to the defendant, city of St. Louis, and its agents and servants, or could by the exercise of ordinary care have been known to said defendant city of St. Louis; that said lumber was negligently, carelessly, loosely and improperly piled, in this, to-wit, that defendants failed to brace said lumber with proper ties or cross-pieces placed between the boards constituting said pile of lumber, and that said lumber was not guarded so as to warn persons who might come near or in contact with same of their danger, and that said pile of lumber was dangerous to persons who might come near or in contact therewith.”

The petition then alleges that plaintiff and other boys were playing in, upon and around snch pile of lumber, when a portion thereof fell upon him and injured him. Damages are asked in the sum of $15,000. The two individual defendants J. P. and C. P. Eiechers answer (1) by a general denial and (2) a plea of contributory negligence. The answer of the city is to like effect. The answer of the Eealty Company need not be considered. Complaint is made of the giving and refusing of instructions, the admission of improper evidence and the refusing to admit proper evidence. Incident facts will be detailed in the course of the opinion in connection with the points made.

I. Plaintiff asked a general instruction which the court refused to give, and this is one of the complaints urged here. .The instruction as asked reads:

“The court instructs the jury that if they believe and find from the evidence that the defendants, J. P. Eiechers and Charles P. Eiechers, placed the pile of lumber mentioned in the evidence on the sidewalk on St. Louis avenue, near Leffingwell avenue, prior to the 11th day of February, 1909, or owned same and allowed it to be done, and that they allowed it to remain there for about three days, and that the defendant, city of St. Louis, knew the same was so placed on said sidewalk, or might by the exercise of reasonable care have known through its officers and agents that same was there; and that the defendants, J. P. Eiechers and Charles P. Eiechers, and the ,city of St. Louis, knew or by the exercise of reasonable care could have known that same was improperly piled and unsafe and dangerous to children lawfully playing on or around same, and that said lumber was carelessly, negligently, loosely and improperly piled by reason of not being braced with proper ties or crosspieces placed between the boards constituting said pile of lumber, and that said lumber was unguarded, and that while said lumher was in said condition on said sidewalk, at the place mentioned in the evidence on or about the 11th day of February, 1909, the front tier of said lumber fell and injured Charles Dougherty, plaintiff herein, while he was playing on, near, at or around same, and that the said plaintiff was at the time he was injured in the exercise of ordinary care, then you will find your verdict in favor of plaintiff.”

This instruction the court modified and gave. The modified instruction reads:

“The court instructs the jury that if they believe and find from the ' evidence that said St. Louis avenue was, on the 11th day of February, 1909, an open public highway, that the defendants, J. P. Riechers and Charles P. Riechers, placed the pile of lumber mentioned in the evidence on the sidewalk on St. Louis avenue, near Leffingwell avenue, prior to the 11th day of February, 1909, or owned same and allowed it to be done, and that they allowed it to remain there for an unreasonable length of time, and that the defendant city of St. Louis knew the same was so placed on said sidewalk, or might, by the exercise of reasonable care,have known through its officers and agents that same was there; and that the defendants, J. P. Riechers and Charles P. Riechers, and the city of'St. Louis,, knew or by the exercise of reasonable care could have known the same was improperly piled and unsafe and dangerous to children lawfully playing on or around same, and that said lumber was carelessly, negligentlyy loosely and improperly piled by reason of not being braced with proper ties or crosspieces placed between the boards constituting said pile of lumber, and that said lumber was unguarded, and that while said lumber was in said condition on said sidewalk, at the place mentioned in the evidence on or about the 11th day of February, 1909, the front tier of said lumber fell and injured Charles Dougherty, plaintiff herein, while he was playing on, near, at or around same, and that the said plaintiff was at the time he was injured in the exercise of ordinary care, then, you will find your verdict in favor of plaintiff.”

Some pertinent facts should be first stated. The individual defendants were the lessees of the vacant adjoining lot, and had it fenced, and for years had used it for the purpose of storing second-hand lumber and other build-mg material. On St. Louis avenue the space between the board fence • surrounding their lot and the curb line of the street was something like twenty feet, the outside portion having a sidewalk upon it. The lumber pile was on the inside portion, and not on the sidewalk portion. The evidence sharply conflicts as to whether the lumber was safely or negligently piled up. A jury could well find either way upon this question. Likewise the evidence sharply conflicts as to how long this particular pile of lumber had been in the street at this point. One witness for defendants says: “I have known Riechers for eight years. The -lumber had been there five or six days. I took more interest in this particular case because I knew that these boys would get hurt if they would keep on playing around that lumber pile.”

Other evidence places the time much shorter, but it is sufficient for us to say that there is a conflict in the evidence, with substantial evidence both ways. The theory of the defense is largely founded upon the testimony of Charles P. Riechers. This is short, as condensed in the abstract, and we quote both sides of it, thus:

“Direct Examination, by Mr. Muench:
.“My name is Charles Riechers. I am in the general construction business with my father, J. P. Riechers & Son. Have been about twenty-five years. We are occupying the lot at the corner- of Leffingwell and St. Louis avenues for storing old building material. The lot is inclosed by a fence. Part of the sidewalk is paved and part nnpaved. From the fence to the curb is about twenty-five feet and six inches. I have heard the testimony with reference to the pile of lumber which was outside of the fence, on the St. Louis avenue side of the lot. That lumber was moved from the southwest corner of Grand and Dodier street. "VVe were wrecking- a building- there; This lumber came out of that building. I had all the nails drawn out of the lumber, perfectly clean, no rubbish sticking to it, lath nails nor pieces of lath remaining, or anything else. It was absolutely clean., It was white pine joists, 2x6, 2x8, 2x10. I saw the lumber as it was piled and after it was piled. Under the bottom of the pile were two pieces of 4x6, laid on an incline toward the fence, by having two bricks under the outer edge of it, and on this we proceeded to pile the lumber about five feet wide up against the fence. The lumber leaned against the fence. The front of the pile was leaning- towards the fence northwardly from twelve to fifteen inches. That was brought about by the pile being five feet at the bottom and from three and one-half to three and three-fourths feet at the top. It was against the fence all the way up. I had last seen this pile of lumber before the accident, about two o’clock in the afternoon. It certainly looked good and safe to me.
“Q. Why was it, Mr. Riechers, that the lumber was not piled in the yard?
“Objected to by Mr. Rosenthal.
“Mr. Muench: The purpose of this question is simply to show that at that particular time there was not room inside the fence to store those boards, and for that reason they were placed jusf outside the fence. I expect to follow that up by other evidence.
“The Court: Well, he may answer that question upon the statement that you expect to follow it with further proof. To which ruling plaintiff then and there duly excepted.
“A. On account of a lot of material accumulating on the inside, and we had to remove this stuff from Grand and Dodier in order to make room for other old material that was to he left there, to be reused in the construction of the new building, consequently by not having room on the inside of this fence we piled the lumber out against the outside of the fence, and just as quick as we could get these nails and stuff out we hauled it down, and then after we had room made in the lot we were going to proceed to move that stuff in the lot. This particular pile of lumber was laid up one plank on top of the other.
“Q. About how long would it have taken one man to remove that lumber from the outside of the fence to the inside?
“Objected to as incompetent and immaterial; objection overruled, to which ruling of the court the plaintiff then and there duly excepted.
“A. It might have taken a day and one-half. At two o’clock in the afternoon of the 11th, the day of the accident, the pile was solid. About 11 o ’clock that night I went by there and I saw some joists scattered, hut I did not know that anything had happened. I just thought the hoys had been playing. The fence is seven feet high exactly, and the lumber was piled within six inches of the top of it. After the accident happened the braces were still under the pile.
“Cross-Examination by Mr. Rosenthal:
“The lumber had been there possibly a day and a quarter. I am not positive whether it was put there on the same day or not, but it was put there on the 10th or 11th, which was Wednesday or Thursday. There had been some lumber out there about six or seven days before. On the 11th of February, 1909, I had timber piled on the Leffingwell side of this property. They were there off and on <ior quite a number of years. This lumber was piled about five foot wide at the bottom, graduating up to the top so that it was narrower on the top than it was on the bottom. There were different sizes, 2x6, 2x8, 2x10. It was timber of different dimensions and we did not pull all of the 2x8 together, nor the 2x6, nor the 2x10. We piled across, one on top of the other, straight from the fence out.
“Q. Explain how the lumber was piled twelve or fifteen inches narrower at the top than at the bottom and still have one of these planks lay right on top of the other, as you indicated? A. Well, it consisted of various widths, 2x6, 2x8, 2x10. If the pile had consisted of only 2x10’s, it would naturally mean that the front of the pile would have remained straight, and we would have got as many tiers on the top as we get on the bottom, but by having different widths we incline those piles in from twelve to fifteen inches by putting 2x8’s, 2x6’s, and 2x10’s together crossways.
“Q. Well, I understood you to say you just took the lumber and unloaded it without any regard to the size and placed it together? A. Well, because the pile was going to be moved to' the inside of the lot in a few days. That’s the reason it was piled so as not to heep it separate.
“There had been some lumber piled there about six or eight days before. There were no ties or crosspieces or braces between the planks of the pile. There wasn’t anything to warn anybody away from the pile or that there was any danger. The lumber was about twelve and one-half feet long. The front tier was practically the same as a pair of stairs, leaning towards the fence from the bottom to the top, twelve or fifteen inches. We didn’t make any tiers. The back was close against the fence and the bottom of the pile was close against the fence. The fence is about four inches out of plum.
“ Re-direct Examination, by Mr. Muench:
‘£ The last lumber was piled there on the morning of the 10th, or before 10 o’clock on the morning of the 11th. of February. The 2x10 ’s were the last piled on the pile. There has never been any pavement along the west side of that fence along the lot.”

We have underscored all the evidence upon which one theory of the given instruction supra, was predicated. This testimony is flatly contradicted both as to the manner in which the lumber was piled up, as well as to the length of time it had been there. This sufficiently outlines the additional facts for a discussion of these two instructions.

It will be noticed that the instruction given by the court precludes the right of the plaintiff to recover, unless the jury found that the pile of lumber had been in the street “for an unreasonable length o'f time.” In other words, the instruction seems to be predicated on the idea that the Riechers had the lawful right to obstruct this street for a reasonable length of time, and they and- the city only became liable for the obstruction after it had remained there more than a reasonable length of time. Under the facts of this case this instruction is vicious. Under certain circumstances abutting property-owners ' have the right to reasonably obstruct a street in the conduct of their business, and of this class of cases the case of Gerdes v. Iron and Foundry Co., 124 Mo. 1. c. 353 et seq., states the very limit of the rule. In that case it is said:

“The general rule which has been repeatedly declared by this court is that municipal corporations are bound to keep their streets and highways in a proper state of repair and free from obstructions so that they will be reasonably safe for travel; and if, having notice of defects or obstructions, they neglect to repair or remove them they will be liable for all injuries, provided that he who received the injury was, himself at the time, in the exercise of due care. [Smith v. St. Joseph, 45 Mo. 449; Flynn v. Neosho, 114 Mo. 572, and cases cited.]
“There is a well-recognized qualification to this strict rule which is declared by Judge Dillon in this language: ‘But it is not every obstruction, irrespective of its character or purpose, that is illegal, even although not sanctioned by any express legislative or municipal authority. On the contrary, the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations and restrictions. The carriage and delivery of fuel, grain, goods, etc., are legitimate uses of a street, and may result in a temporary obstruction to the right of public transit. . . .Temporary obstructions of this kind are not invasions of the public easement, but simply incidents to or limitations of it. They can be justified when, and only so long as, they are reasonably necessary. There need be no absolute necessity: it suffices that the necessity is a reasonable one.’ [2 Dillon on Mun. Corp. (4 Ed.), sec. 730 and cases cited; Stephens v. Macon, 83 Mo. 345; Welsh v. Wilson, 101 N. Y. 256.]
“There can be no doubt, under this obviously just qualification, that the manufacturing company had the right to make reasonable use of these streets for the deposit of their manufactured goods, for the purpose of loading and unloading them, though not directly authorized' by an ordinance of the city. ' But it had no right to make a permanent use of the street for storing its property, or to make such temporary ■ use as would unreasonably interfere with travel. The reasonableness of the use should be measured by the character of the articles to be handled.”

Other cases are cited by the respondents, but this case sufficiently illustrates the doctrine under which they attempt to sustain this instruction. The trouble is not with the doctrine of a reasonable temporary use of the streets by abutting property-owners, but in the case at bar the facts do not bring the use within the spirit of the rule. This doctrine of a reasonable temporary obstruction of public streets by abutting property-owners lias its origin in the law of necessity. In loading and unloading manufactured articles from a factory, a reasonable temporary obstruction of the public street may be necessary, but such obstruction must be both reasonable in kind and temporary in character. Building new buildings and repairing old ones may of necessity require the reasonable and temporary obstruction of streets. And it might be added that the reasonableness of the obstruction, as well as its temporary character, may vary with the facts of each case, and both may be questions for a jury. But under the facts in this case this pile of lumber was an unauthorized obstruction in a public street, and neither its reasonableness nor its character as to being temporary or otherwise, were questions for the jury, and therein this instruction was error .

We have set out this evidence at length. It shows (1) that Riechers & Son used the abutting property as a storage place for old building material, (2) that their storage room was full to overflowing and for that reason they used a public street as a storage room, and (3) that they proposed to so use such street as a storage room for the conduct of their business until such time as the congested condition within their yards was relieved. This testimony does not show a temporary use within the rule established by the case upon which the defendants rely. Had they shown that the lumber was temporarily thrown in the street at the gateway of their yard, until such time as it could be carried in and then stored, we might have a different question. If a merchant receives a car load of plows, and makes a reasonable use of the sidewalk until such time as by the use of due diligence (and the situation demanded the use of the sidewalk) he could have them taken away and placed in his storage room or yards, such use might be said to fall within the rule stated in the Gerdes case, supra; but, if such merchant deliberately stored his car load of plows upon the sidewalk, until such time as in the course of his business, he could reduce his stock, so as to have room to store them upon his own premises, such case would not fall within the rule of a reasonable temporary use. Whilst such a use might not last long, yet the facts would make it in law a permanent and unlawful use. The case at bar falls within this latter class. Under defendants’ testimony, this lumber was being stored there until such time as they could use sufficient ma-' terial from within to leave a place for its storage at this later date. Such an obstruction to a public highway is neither reasonable nor temporary and should be so declared as a matter of law. This modified instruction given by the conrt does not declare the law under the facts of this case, and for this error the judgment nisi must be reversed and the cause remanded.

II. Going now to the instruction asked by the plaintiff, supra, it must be said that it too is not without some fault. With the view we have expressed in paragraph one, notice to the Eiechers was not required. They were the authors of an unauthorized obstruction, and an obstruction dangerous (under plaintiffU evidence) to children who might be lawfully using the street whilst at play. But the city of St. Louis is a defendant, and notice to it was essential to its liability. In this instruction is the clause “and that they allowed it to remain there for about three days,” and it may be that this would make the instruction misleading. It might be construed that the court was saying that “about three days” was in law the reasonable notice to which the city was entitled before liability would attach. The clause is awkwardly used, and in redrafting can be left out or changed as herein suggested. Otherwise this instruction properly declares the law.

III. Instruction numbered 5 for the defendants is erroneous for the same reasons given in our paragraph one, and perhaps for others. In fact there are numerous errors throughout the long list of instructions, but they mostly arise from the erroneous view taken by the-trial court, as disclosed in our paragraph one — and for that reason need not be noticed in detail. The plaintiff’s evidence is such as to justify the submission of his case both as to the city and the two individual defendants, and under proper instructions the jury may take a different view of the matter. Let the judgment be reversed and the cause remanded to be tried according to the views herein expressed.

All concur.


author: BOND, J. WOODSON, P. J.

text:
    J. D. BEAUCHAMP, Appellant, v. PIKE COUNTY.
    Division One,
    June 28, 1913.
    1. COUNTY SURVEYOR: Office Rent. Where the county surveyor sues the county for the rental value of a room in his private residence and for a telephone installed in said office, and the case is submitted - on the theory that it was the duty of the county court to provide office room and a telephone for the conduct of his official business, without a request on his part, and if it failed to do so he could recover the reasonable value of the room and telephone used in the conduct of his official business, a verdict for the county is an end to his claim, there being evidence that the room in his private residence and the telephone were used for private purposes, and that he could have had an office in the court house had he desired it.
    2. -: Instructions: Alternative View. It is not error to give instructions for defendant that present a mere alternative view of the evidence submitted by the instructions given for plaintiff.

      3. -:--: Record of Surveys. An instruction telling the jury that the hook of the “record of surveys” should be deposited in the recorder’s office and subject to public inspection is a correct statement of the law,
    Appeal from Pike Circuit Court. — Hon. David H. Eby Judge.
    Affirmed.

      Hostetler S Haley for appellant.
    (1) The court erred in giving defendant’s instruction number 1. There is no evidence on which--to base this instruction. Plaintiff testified that he used a room in his dwelling as an office room where negroes as well as whites were admitted on official business, and where he kept his records, maps, instruments, etc. It goes without saying that negroes would not have been received in his private dwelling on terms ■of social equality, but calling on official business they were received there and treated as courteously as if they had called at his office in the court house, had he been provided one there. There was no testimony from anybody that plaintiff merely used this room in his dwelling for his own convenience; or that he did not use said room as an office; or that he did not -use it as a convenience for the public in transacting business with him as county surveyor. An instruction must have some evidence for a basis, else it is error for it to be given. (2) The court erred in giving defendant’s instruction 2. While this instruction may be correct as an abstract proposition of law, yet the •effect of giving it was misleading to an unsophisticated jury, and it no doubt had the effect it was intended it "should have, to-wit, of causing the jury to form the •erroneous conclusion that as the recorder was the legal ■custodian of this particular book known as the “Record of Surveys” that therefore there were no public records of which the county surveyor was the legal custodian, and therefore he had no use for an office room, having no records to preserve or keep therein. It would have been just as proper to have told the jury by instruction that the recorder of deeds was the legal custodian of the deed records or the marriage license records, or that the county clerk was the legal custodian of the plats and surveys of public roads after they had been made by the surveyor under directions and orders of the county court and filed by him with the county clerk. Besides this instruction was an unwarranted comment on the evidence and its effect was prejudicial. This instruction is further misleading in that it creates the erroneous conclusion that the recorder alone, and not the surveyor, is responsible for this book known as the “Record of Surveys.” This is one of the books covered by the surveyor’s bond. Sec. 11293, R. S. 1909. While the book is in the possession of the surveyor he is certainly responsible under his bond for its safe-keeping. Sec. 11303, R. S. 1909, provides that the surveyor shall “keep a fair and correct record of all surveys made by himself and his deputies, in a well-bound book ... to be procured at the expense of the county. ’ ’ Further on in the same section it is provided that the surveyor shall “deliver a copy of any survey to any person requiring the same, on payment of 'the fees allowed by law, so long as said record shall remain in his possession.” The vice of the instruction is accentuated by its stating only a portion of the law. (3) The court erred in giving defendant’s instruction 3. This* office rent account was a running account or at least that question should have been left to the jury. (4) The court erred in giving defendant’s instruction 4. This instruction is erroneous and prejudicial from any angle it may be viewed. It is conceded that the defendant failed to furnish plaintiff an office. Both Judges Robertson and McCune admitted that they never did provide plaintiff ■with an office. They both claimed in their testimony that Mr. Beauchamp- never demanded an office room of them, hut they both admitted that 'they not only did not furnish or provide him with an office room, but that they never even offered to do so. If this does not constitute a failure to furnish plaintiff with an office, then the common sense canons of construction of the English language must be completely ignored. Yet the jury are told by this instruction, that if the plaimtiff made no request of defendant for an office, “and that defendant neither failed nor refused to furnish said office,” then he was not authorized to provide such office at his dwelling and could not recover on that issue. Even an offer, not backed up by good faith or deeds would not absolve defendant from its breach of duty. ITarkreader v. Vernon County, 216 Mo. 704. (5) The court erred in refusing plaintiff’s instruction number 7. This instruction tendered correct propositions of law and embodied the points applicable to the issues in the case at bar. Its correctness is supported by Ewing v. Vernon County, 216 Mo. 681; ITarkreader v. Vernon County, 216 Mo. 696, and Motley v. Pike County, 233 Mo. 42. (6) The court erred in refusing plaintiff’s instructions 8 and 9. These instructions embody substantially the same issue. If plaintiff as county surveyor was entitled to have an office, or was required by law to maintain one, then the instructions were correct. Ewing- v. Vernon County, 216 Mo. 681; Harkreader v. Vernon County, 216 Mo. 696; Motley v. Pike County, 233 Mo. 42; Boone County v. Todd, 3 Mo. 140; County Court v. Ruland, 5 Mo. 268; Saylor v. Nodaway County, 159 Mo. 520; R. S. 1909, sec. 11310. (7) The verdict- was against the instructions given by the court on behalf of plaintiff. No one disputed that Mr. Beauchamp maintained his office in a room of his residence; no one disputed that the county court failed to furnish or provide him with an office room; no one disputed that he installed the telephone in his office and paid the 28 months rental ont of his own pocket; no one disputed the payment by Mr. Beauchamp of the expenses of the special telephone messages amounting to $1.30. The court properly declared the telephone to be a necessity. This is not a case of conflicting testimony so as to ren-' der the verdict of the jury conclusive. The evidence was all one way and the jury’s verdict was squarely opposed to the evidence as well as the instructions given on behalf of plaintiff. (8) The verdict was against the conceded and admitted facts of the case and should have been for the plaintiff. Boone County v. Todd, 3 Mo. 140; Motley v. Pike County, 233 Mo. 42.

      T. B. McGinnis and W. O. Gray for respondent.
    (1) Respondent’s contention is: That as no proper evidence on the part of the appellant was excluded by the trial court, and no improper evidence on the part of the respondent was admitted, and that, as the law was correctly declared by the trial court, this court will not set aside the verdict of the jury. '“It is the province of the jury to determine the credibility of witnesses, and the probative force of their testimony in the trial of law cases,- and the courts will not set aside their verdict where there is substantial evidence to support it.” Huth v. Doble, 76 Mo. App. 671; Temple v. Railroad, 83 Mo. App. 64; Blanton v. Dold, 109 Mo. 64; Carter v. Railroad, 156 Mo. 635; Plow Co. v. Sullivan, 158 Mo. 440. In his brief appellant does not assign as error that any proper evidence on his part was excluded, or that any improper evidence on the part of the respondent was admitted, in fact he says there was practically no dispute about the evidence. (2) Six instructions were given on behalf of appellant, covering fully all the issues under his contention and declaring the law for him most favorably, as found in the cases of Ewing v. Yernon County, 216 Mo. 81, and Harkreader v. Yernon County, 216 Mo. 696. These instructions in the case at bar were carefully and forcefully drawn by the learned counsel representing the appellant, right in line with the law in these cases. Instructions 7, 8, 9 offered on behalf of appellant were properly refused; but if not, there is no reversible error, for the reason that all the issues were fully covered by the six instructions given. Conolly v. Printing Co., 166 Mo. 447. Instruction seven asked the court to instruct the jury as to furniture, fuel, janitor service, all items not embraced in his account, and was therefore properly refused. Instructions 8 and 9 were fully covered by the six instructions given, and were refused also for the reason indorsed in each of them by the trial court: ‘ ‘ That as applied to this case the instruction is misleading, while it may be the dnty of the county to furnish such room, yet, if voluntarily and without any refusal on the part of the county to furnish him a room elsewhere, plaintiff selected a room in his residence, the county would not be bound to furnish a room elsewhere in the sense intended by the instruction.” But in any event appellant cannot complain, because the six instructions given covered all issues and declared the law for him fully and forcibly.
   STATEMENT BY THE COURT.

The plaintiff is the county surveyor of Pike county and was serving his third term, when he brought this suit against the county for the reasonable value of the use of one of the rooms of his house as a public office, for eight years and four months, alleged to be $505; for the installation of a telephone at said residence two years and two months, $28; and for special telephone messages, $1.30. Th answer was a general denial and the plea of the Statutes of Limitations for five years as to the indebtedness existing beyond that period, before suit.

Plaintiff, whose business is that of dairyman and milk dealer, stated that be used one of tbe rooms of bis residence, about one-half mile from town, for bis office as county surveyor; that persons who bad official business with him called and were received there, that tbe room in question was also used by himself and family as the sitting and receiving room for themselves and social callers, that be caused a telephone to be placed in said room, for which be paid the rate charged in residences, and which was used for official purposes and also for tbe convenience of himself, bis family, and other persons. That be bad so located bis office because tbe county court bad failed at bis request to provide bim suitable office and furnishings. That tbe reasonable rental value of tbe room in bis residence was five dollars per month, amounting to the sum claimed therefor in bis petition; and be testified to tbe same effect concerning tbe items claimed for telephone service, and to tbe last item of special messages be claimed to have spent forty-five cents.

For tbe defendant, Mr. Eobertson, member of tbe county court, testified that plaintiff never mentioned to bim any bill for office rent and never at any time demanded any room wherein to keep bis office, and tbe court never provided for bim in that respect. This witness was a member of tbe county court during tbe whole time embraced in plaintiff’s claims.

Mr, McCune, who bad been presiding judge of tbe county court for three years, testified that tbe plaintiff made no demand for rent of office during bis incumbency, and further testified, to-wit:

“Q. State if you were willing at any time to furnish an office for bim, if be wanted it? A. Yes, sir.
“Q. In tbe courthouse? A. Yes, sir.
“Q. Did be ever make any demand on you, or any member of tbe county court as far as von know, to furnish bim an office? A. No, sir.”

This witness further stated that there were two rooms in the courthouse available for that purpose. Defendant had judgment and plaintiff'appealed.

OPINION.

I.

BOND, J.

(After stating the facts as above).—

The court instructed the jury that it was the duty of the county court to provide an officé room for the use of plaintiff as county surveyor, without any request on his part, and that in case of its failure to do so, plaintiff could recover the reasonable value of the use of one of the rooms of his residence as an office. And that a telephone was a necessary equipment of such an office, and that the expense of installing the same could be recovered by the plaintiff (upon failure of the county court to provide the same) if the jury believed the plaintiff had installed this instrument in the room of his residence where his office was kept, for the discharge of his official duties.

The testimony in this case clearly presented an alternative view of what is expressed by the foregoing-instructions. Upon that conflicting evidence the jury found for the defendant and hence conversely to the theory of the plaintiff’s instructions. Necessarily that verdict leaves nothing for review. The instructions given for plaintiff submitted to the fullest extent the ■doctrine announced in the two recent cases. [Ewing v. Vernon County, 216 Mo. 681; Motley v. Pike County, 233 Mo. 42.]

In the former case the point in judgment was the right of the recorder of deeds to recover a reasonable ■outlay made by him for janitor service in his office, which “was denied to the office,” although it had been previously furnished by the county court as a part •of its system of maintaining that service in the courthouse where the recorder’s office was located, and which, was continued in the remainder of the building. [Ewing v. Vernon County, 216 Mo. 687.] It was held, that the recorder could recover the reasonable expense of the service the county had deprived him,, as the record showed that it was'not “caused by petulant, unreasonable, or a capricious conduct” on his part, hut was expended for a matter necessary to the “keep of his office.”

It is apparent, that ease is wholly unlike the present in its facts, and that the ruling is not to the point. Here the issue was sharply drawn whether the plaintiff desired an office in the county courthouse; where,, or in some other suitable place, it was the duty of the-county court to provide him proper quarters- and necessary appliances for the discharge of his public duties. The jury evidently found that the plaintiff óf his own volition and for his own convenience, located his office in his dwelling and failed to avail himself of his right to require the county court to make other provisions for the location and keep of an office for him.

The case of Motley v. Pike County also correctly ruled that the county court must provide the public-office of judge of the probate court with adequate janitor and telephone services under the statute (R. S. 1909, sec. 4065), requiring the county to pay for the “other necessaries” of a probate court. That case decided that items embracing these expenses, must he allowed to the probate judge. But it is plain that ruling does not apply to the facts in the plaintiff’s-case. In the case at bar, in addition to choosing his-residence as a place of business, the plaintiff installed a family telephone at the different rate charged to-resident users, this he said was used “by his family, the neighbors, and other people that came there.”' It might have been well found by the jury, that it was necessary for the dairy business that the plaintiff carried on and out of which he says he had to make his living. Plaintiff was not entitled to be reimbursed for the expense of his telephone if it was -incurred for the uses of his private business or the convenience of his family and neighbors. There is testimony of the plaintiff that on two occasions he expended twenty and twenty-five cents respectively for telephoning as to a matter connected with his office, and that this amount of forty-five cents had not been returned to him by the court. But this testimony was a matter addressed to the credence of the jury, whose verdict for the defendant concludes the matter.

II. The learned counsel for appellant insist the court erred in giving instructions numbered 1, 2 and 3 for the defendant. We think not. The first was merely the alternative view of the evi¿61106 submitted by the first instruction given for plaintiff. The second, was a correct statement of the law that the book of the “record of surveys” should be deposited in the recorder’s office and subject to public inspection. The third only defined the effect of the Statute of Limitations.

Neither is there any merit in the claim that the appellant was entitled to his refused instructions. These were mere iterations of what was contained in the full and complete instructions which the court had given at Ms request.

There being no reversible error in the case the judgement is affirmed.

Lamm and Graves, JJconcur, Woodson, P. J., dissents in separate opinion.

DISSENTING OPINION.

WOODSON, P. J.

I dissent from this opinion for the reason that it does not comply with the mandate of section 2088, Revised Statutes 1909.

The previous section provides that the opinions of this court shall be in writing- and filed in the cause; and section 2088 provides that “the opinion shall al~ ways contain a sufficient statement of the case, so that it may be understood without reference to the record ■and proceedings in the same.”

I am unable to understand, from this opinion, the errors complained of or the legal propositions presented by appellant to this court for determination; and therefore am of the opinion that it does not comply with the mandate of that section.

The amendments and modifications made to the opinion since writing the foregoing observations do not in my opinion correct the error there pointed out.