
    ARCHIBALD GAMBLE vs. THE CITY OF ST. LOUIS.
    1. Where a valid legal objection appears upon the face of the proceedings, through which the adverse party can alone claim title to the complainant’s land, there is notin law such a cloud upon the complainant’a title as to authorise him to apply to a court of chancery to set aside such proceedings.
    2, But where the claim of the adverse party to the land is valid upon the face of the proceedings, or of the instrument sought to be set aside, and extrinsic facts are necesssary to show the invalidity of these proceedings, the court of chancery may interfere to remove such a cloud upon the complainant’s title.
    3. Facts stated which the court consider sufficient to warrant a court or jury in presuming that certain private property has been dedicated to public use.
    APPEAL FROM ST. LOUIS CIRCUIT COURT
    Gamble, for appellant.
    The alley was private property, and the city can only pave alleys, streets, &c., which are public, already dedicated to public use, and the attempt to coerce the appellant to pay for the paving his own land, by selling his other land, is an injury which a court of equity should restrain.
    The city clearly had no power to pave the alley unless it was public. See City Charter laws, 1839, page 164; laws 1841, page 137; laws 1843, page 123.
    The alley was not dedicated to public use as a public alley. The only dedication pretended is by the proprietors suffering the land to remain unenclosed. This cannot amount to a dedication without the assent of the proprietor to its use by the public as a public alley. It is his assent to its use as such joined with the actual use which creates the dedication. Cincinnati vs. White, 6 Peters, 431—particularly 440; Barclay vs. Howell, 6 Peters, 498.
    And such assent will not be presumed from the use without concurring circumstances, as length of time, &c., for if ail lands unenclosed, and over which other persons may pass with the knowledge of the proprietor, and unrestrained by him, be presumed dedicated to public use, then nine-tenths of the land in Missouri is so dedicated, which cannot be the fact. The section of the charter (7th section of 6th art.) which gives to the mayor and city council power to tax lot holders according to the respective points owned by them, is unconstitutional. Constitution, art. 13, sec. 19.
    Blennerhassett, for appeilee.
    The facts disclosed by complainant’s bill show that the alley in question was dedicated by the owner thereof, the complainant, to public use. ’Tis true that the complainant did not convey the premises through which said alley runs, by deed, to the city ; but this is not necessary. A dedication can be effected by parol as well as fay deed; nor is there any particular form necessary. If the owner in fee sets apart the premises for a street or alley, though it be for his own convenience, and permits it to be used by the public indiscriminaiely, the law will presume a dedication, and to rebut this presumption, he must show affirmatively that he prohibited its use as a street or highway. The city of Cincinnati vs. White’s lessees, 6 Peters R. 431, and the cases there cited.
    If this alley was dedicated to (he city for public use as claimed, the corporation possessed .ample power by the charter of 1839 to pass such ordinances as were necessary to place it in such a condition as would prevent any detrimental consequences to the general health of the citizens; in other words,- the city had power to remove the nuisance, which by the reports of the city engineer, as set out in the answer, existed there at the expense of the owners. Art. 3, sect. 1, clauses 6 and 8; art. 6, sec. 7 of the charter of 1839, and same clauses and sections of art. 3, and same section of art. 6, of the amended charter of 1841.
    • If the foregoing positions should be regarded as untenable, and that the city acquired no title whatever, and that the alley and the ground on which it was laid out was, and remained the property of the owner, then it is contended that these facts appearing on (he face of the proceedings, the complainant is not entitled to relief in this court, he having a complete and perfect remedy at law; he could set up the same facts on which he now claims relief, as a defence against an action which the purchaser at tile tax sale may bring to recover possession of the property soid, or he may pay the tax assessed, and recover it back in an action at law against the city, regarding it as a compulsory payment. Van Doren and others vs. Mayor, &c. of New York, 9 Paige 388; West and others vs. Mayor, &c. of New York, 10 Paige, 539; 17 Miss. R. 461; 1.2 Pick. R. 206; 4 Pick R 361; a Conn. R. 223; 12 Pick. R. 7; 10 Conn. R. 127.
    It is claimed by the complainant that the proceedings upon the assessment are void; if so, a purchaser ata sale, under such assessment, could not obtain a prima facia title to lands soid for the payment of the assessment, and these facts appearing in the bill, a court of chancery has no jurisdiction to interfere and set aside the assessment, nor is there in. law such a cloud upon the complainant’s title as to authorise him to apply to a court of chancery id id.
    
    The complainant seeks to restrain the collection of a mere pecuniary demand, unaccompanied by any acts on the part of the defendant which would make such collection uneonscienable; it is not claimed or pretended that the defendant is about doing any act to the property of the defendant which would work an irreparable injury or mischief. If the city of St. Douis cannot collect the amount assessed, it must follow that it had. no power or authority to abate the alleged nuisance by the improvement of the alley, and that by said improvement the city was exercising an umvairantable authority over the complainant’s property. Taking this view of the case, it is insisted that the complainant should have invoked the equitable power of this court to prohibit the making such improvements. Having omitted to do that., it is-now too late to. ask this court to restrain the collection of the sum assessed.
   Judge Napton

delivered, the opinion of the court.

This was an application for an injunction. The complainant alleges, that he is the owner of two lots in block No. 86 of the city of St. Louis, one fronting on Pine st. about one hundred feet, and another lot of 64 by 101 feet, near the middle of the block, and that for his own convenience he appropriated about 15 feet taken from each lot for a private alley ; that at the time he made this appropriation the remainder of the-block was vacant, so that wagons, drays, &c., could pass and repass from Pine to Cbesnut street •, that wiien the owners of the other lots made their improvements, they conformed to the lines of the private alley; so- that it remained open for the public from Pine to Chesnut street. The complainant further states, that the city corporation caused the said alley to be paved, and after thus taking his private property for public-use, presented him a bill of $117 06 as the proportion assessed on-him, and demanded payment, which being refused, the city was proceeding to sell his lots for the payment of these taxes, by which a cloud'would be brought upon his title, &c.

The answer of the city admitted the ownership of the lots in complainant, the grading and paving of the alleys, and the attempt to force payment of his assessed taxes, but asserted that the charter and ordinances of the city authorised the proceeding. The answer admits that complainant have laid out the alley for his own convenience, and that the other proprietors may have been influenced by similar motives in conforming their buildings to the lines of the alley; but insists that the alley was thus open in 1839, and continued so with the full knowledge and consent of complainant. That in September, 1839, Rene Paul,., city surveyor, reported to the board of aldermen that said alley had been surveyed by him as city surveyor, by authority of the proprietors, and that the acquiescence of the complainant and the other proprietors in the use by the public, and the survey without objection, constituted a. dedication of this alley to public uses; and further, that whether it was. a public or private alley, the charter gave the city authorities power to, grade and pave it at the expense of the proprietors of the adjacent lots. The answer relied upon the charter and various ordinances of the city council as fully'authorising what their officers had done in the premises..

To this answer there was a replication, and the cause coming on to be heard upon the pleadings and proof, the injunction was dissolved. The-questions chiefly discussed in this case, are presented by the record in, such an unsatisfactory shape as scarcely to warrant us in expressing a definite opinion upon them. The ordinances of the city council, to, which reference is made by the answer, have not been preserved upon the record, nor has the evidence, if any was. offered in the court below,, been saved by bill of exceptions. The case was heard upon the bill, answer and testimony, as the record states., but there is no testimony before us.

The question of jurisdiction about which much has been said in the argument, seems not to have been made in the. circuit court. There was. no demurrer to the bill, nor did the answer set up any such defence. There does not appear to be any material difference of opinion in relation to the grounds upon which a court of chancery is authorised to interpose its powers in cases like the present. The only dispute is as to the application of the principle agreed onto the facts in-this case as they are disclosed upon the record. It is conceded that where a valid legal objection appears upon the face of the proceedings, through which the adverse party can alone claim any right to the complainant’s land, it is not such a cloud upon his title as will authorise a court of equity to stay proceedings; but where the claim is valid upon the face of the instrument on the proceedings sought to be set aside, and extrinsic facts are necessary to show the invalidity of these proceedings, a case is made out for the interference of the chancellor. It is obvious that if the objections now taken to the proceedings of the city were limited to the one which relies upon the unconstitutionally of the ordinance which authorises the assessment of the paving tax, and fixes the ratio upon the owners of the lots adjoining the alley or street, there would be no necessity for a court of equity to interfere. That question could as well be tried in examing the purchaser’s title at law. It wo>«ld strike at the foundation of his title, and would be apparent upon the face of his title papers. But the principal ground upon which the complainant relies, is the position he assumes that the alley upon which the city authorities have entered is his private property, and not by any act or assent of his dedicated to public use. The determination of this question may depend upon facts outside of the ordinances of the city, and the proceedings thereon necessary to make out the purchaser’s title.

It maybe important to the complainant to have an immediate decision of this question, it being one of fact, and depending upon the presence of witnesses, whose memory and life, and accessibility, he is unwilling to risk to the chances of a future litigation. Waiving then the objection which might well be taken to raising this question upon the final hearing, we are not prepared to say that the case presented by the bill may not have been a proper one for an injunction.

The dissolution of the injunction upon the final hearing presents the only question remaining to be determined. We should be unwilling to venture any definite opinion upon the question of dedication. We are not in possession of all the facts which may have been before the circuit court, and every presumption is in favor of the decree. We must, however say, that so far as the case is presented by the bill, and answer, and exhibits, we should incline to the inference that this alley was fully within the jurisdiction of the corporate authorities of St. Louis. The charter of the city authorises the council to “open, alter, abolish, widen, extend, establish, grade, pave-, or otherwise improve and keep in repair, streets, lanes, avenues and alleys.” The power of grading and paving alleys is doubtless limited to such alleys as are public. The power to establish, open or widen alleys, necessarily implies a power to create an alley where none before existed ; but this, we presume, could only be done by making compensation, or upon the assent of the proprietors. Other provisions no doubt point out the steps to be taken in exercising this power of opening or establishing streets and alleys. The city authorities, in this case, certainly treated the alley now claimed by the complainant as his private property, as a public alley, and the answer on the record sets up this defence. In 188.9 the alley was- open and used by the public without objection. In the same year the city surveyor reported to the board of aldermen, that this alley had been surveyed by him as city surveyor,, by authority of the proprietors, which report (it is stated in the answer ).is found in. the printed journal of said board. In 1840 an ordinance was passed' (8th Sept. 1840) making it the duty of the street commissioner to report to the city council every unpaved alley, which by reason of its remaining unpaved could not be kept clean ; and for the directing the commissioner, upon the passage of an ordinance for such purpose, to cause such alley to be graded and paved, and apportion the costs ‘ among the owners of the lots bordering thereon agreeable to their respective fronts. It appears that in pursuance of this ordinance the street commissioner, on the 27th Oct., 1840, reported to the city council that this alley, being unpaved, could not be kept in proper condition, and again in 1841 made a similar report, declaring further that said alley was a public nuisance. In consequence of these reports, an ordinance was passed on the 17th June., 1841, authorising the city engineer to have this alley graded and paved, and it was done accordingly.

What facts or circumstances will be sufficient to warrant a court or jury in declaring private property to have been dedicated to public use, either as. a street or alley, must necessarily vary in every case.. General, rules m,ay be settled, and have been settled, but after all the question is oneuof fact, and must be governed b.y its own circumstances. In Jarvis vs. Dean (3 Bingh. 447,) the court allowed the jury to presume a dedication to. public use, if they thought the street had been used for years, as a public thoroughfare, with the assent of the owner of the soil; and although in that case the street had not been opened or used as such but from four to five years, that circumstance was not considered conclusive against the dedication ; on the contrary, the court said that no particular length of time was necessary to establish a dedication, although this circumstance was entitled to weight, where the acts were in other respects of a doubtful character..

The principle was fully recognised and acted upon by the supreme court of the United States in the city, of Cincinnati vs. White’s lessees, (6 Peters, 431) and by this court, in the case of Carlin vs Paul (10 Mo. R.) In the case of the city of Cincinnati vs. White lessees, the court held that to constitute a dedication, it was only necssary to appear that the ground had been used for the public purposes, and that this use had been with the assent of the owner.

In the present case, the complainant laid off an alley from his -lots for his own convenience, but permitted the public to use it. The adjoining proprietors accommodated their improvements to the same, and accordingly there was a public thoroughfare of thirty feet wide through the entire block, extending from one street of the city to another. The complainant does not pretend that any indications were given by him, that this alley was for his exclusive use. No gates or inclosures of any sort were erected to signify an intention of excluding the public. Every one was permitted to pass without objection. It was surveyed by the •city surveyor, not only without objection, but at the request of the complainant and' the other proprietors. Reports are made to the city council of its uncleanly condition, and ordinances are passed to cause it to be graded and paved. The proceedings of the council and its officers ■are duly printed in the city papers. No obligation is imposed upon the city authorities to give a special notice in these cases, and if there was, •it does not appear that the complainant was either absent or ignorant of these proceedings. The officers of the city proceed to execute the ordinance, by entering upon this alley and actually grading and paving it. All these things are done without objection or remonstrance, and it is not until the tax is soughtto be collected that we hear a complaint. It is strange that the complainant could suffer the city officers to send their servants upon his private lots and pave them without remonstrance, if he still regarded them as private property, and not open to the public use. We have no evidence that the complainant was ignorant of these proceedings. He does not allege, any want of notice in his bill, and the •answer asserts that he was not ignorant of them, and there is no proof on the record. Under these circumstances, we do not see how the corporate authorities eould regard this alley in any other light than a public thoroughfare.

We do not lay much stress upon the fact stated in the complainant’s bill, that he intended the alley and laid it off for his own private use. This is not at all inconsistent with his assent that it might be used by the public. The motive which influences almost all such appropriations or dedications, is the convenience and accommodation of the proprietor and an enhancement of the value of his property remaining. All the proprietors along this alley were doubtless influenced by similar motives. Their own convenience and the value of their lots were promoted by allowing this alley to be a public thoroughfare.

Without, therefore, feeling warranted in such a record in dedicating how far the complainant had parted with his exclusive control over the land upon which this alley was laid off, we shall affirm the decree of the ■circuit court dismissing the bill.  