them. The innocent purchasers of these lots, who, in ignorance of their claim to a vendor's lien, have paid the full assessed value of each acre, and in good faith have built homes upon it, cannot, under such circumstances, be held liable. We think the circuit court correctly ruled that plaintiffs had no vendor's lien, on the allegations of this second count, and properly held the several lots were released from the trust deeds, and its judg ment is accordingly affirmed.

river of 12 arpens. Plaintiff, who sues as trustee for Mrs. Virginia Lynch, claims title to the land in question as being accretions to the land so conceded and confirmed. Without tracing the title from Brazeau, as was done on the trial, it will be sufficient to say that in 1833 the original concessions were divided into five lots, each of which fronted 3982 feet on the Carondelet road, now avenue, and extended east to the river, and John B. Douchouquette about that time became the owner of lot 4 of said division.

1. In ejectment, a plea of title by adverse possession admits possession by defendant, and therefore plaintiff need not introduce proof thereof.

2. The fact that accretions are due wholly or in part to obstructions placed in the river by third parties, does not prevent the riparian owner from acquiring title thereto.

3. Under a statute authorizing a married woman to convey her estate in land only by deed duly acknowledged, an unacknowledged deed by her to a city is void as a dedication.

4. After the failure of the licensee of land to take possession or use the land for 40 years, and an inconsistent use of the land by the licenser, an executory license in regard thereto will be deemed revoked.

5. The conveyance of a lot facing on a street set apart in the plat for the use of the owner of lots abutting thereon conveys only an easement in the street.

6. An outstanding easement in land in a third person does not bar a recovery thereof in ejectment.

Error to St. Louis circuit court; Leroy B. Valleant, Judge.

Ejectment by Joseph Tatum against the city of St. Louis. There was a judgment for defendant, and plaintiff brings error. Reversed.

J. T. Tatum and Leverett Bell, for plaintiff in error. Wm. C. Marshall, for defendant in error.

MACFARLANE, J. The action is ejectment to recover possession of a parcel of land in the city of St. Louis fronting 398 feet on the Mississippi river, and having a depth back of 307 feet. The land is claimed by the city as part of its public wharf. The answer was a general denial and a plea of the statutes of limitation. The case was tried to the court without a jury, and a verdict and judgment was rendered for defendant, and plaintiff appealed.

Plaintiff claims title through concession made to Joseph Brazeau, and confirmation thereof by act of congress in 1836. These concessions were bounded on the east by the Mississippi river, making a frontage on the

avenue to the river was about 1,800 feet, while at the trial it was about 2,800 feet. There was consequently about 1,000 feet between the east line of the lot, which was then the river bank, and the river bank as it is at present. The land in dispute is a part of this added land. In 1839 the west half of all five of these lots was subdivided into an addition to the city. Columbus street, running north and south through the center of these lots, formed the eastern boundary of the addition. In 1850 the title of that part of lot 4 lying between Columbus street and the river was vested as follows: Mrs. Lynch held an estate for life in the whole, and an undivided one-fourth of the remainder in fee; and Victoria Douchouquette, now Victoria Whyte, an undivided three-fourths of the remainder in fee. On May 17, 1870, by proper deeds, the title of Mrs. Lynch was vested in Joseph T. Tatum as trustee for her. Since the commencement of this suit, the interest of Mrs. Lynch has been assigned to Mrs. Whyte, who has been substituted as plaintiff. The evidence showed that as early as 1845 an island, known as "Duncan's Island," formed in the river opposite the land comprising the original Brazeau concession, but it is conflicting as to whether the southern end thereof extended as far south as the lot in question. Originally a part, at least, of the channel of the river flowed between the island and the Missouri shore. This part of the channel subsequently became a mere slough, and dikes were run out from the main shore, connecting it with the island. It does not appear that any of these dikes were built as far south as said lot 4. The slough was subsequently filled entirely, and the river bank was changed to the east side of the island. As has been said, the land thus formed extended east from plaintiff's original boundary about 1,000 feet. Main street was established over this new-made land, and the river front was declared by an ordinance of the city to be a public wharf. The land claimed in this suit is a part of that dedicated by the city as a wharf, but the evidence fails to show any improvement as such. Much evidence was introduced for the purpose of proving that the slough between the island and the shore was filled, and the new land formed, by means of the obstruction of the water by the dikes, by the construction

of the Iron Mountain Railroad on trestles along the slough, by filling with dirt taken from other portions of the road, by filling by the city, and constructing the wharf. De fendant claims on this appeal that-First, it was not shown on the trial that defendant was in possession of the land sued for; second, that the action is barred by the statutes of limitation; third, that the land is not an accretion to plaintiff's original tract; fourth that the city is entitled to an easement in the land for a public wharf by virtue of a license conferred upon it by the plaintiff in 1851; fifth, that an outstanding title in Thomas Marshall was shown.

1. At the conclusion of plaintiff's evidence in chief defendant prayed the court to nonsuit him, for the reason that there was no evidence that it was in possession of the property at the commencement of the suit. This prayer was properly denied, for the reason that the possession of defendant was, by the plea of the statute of limitation, substantially admitted. By this plea defendant states "that it has been in open, notorious, continuous, peaceable, and adverse possession of the premises described in the petition since, to wit, 1850, claiming to be the owner thereof, against the plaintiffs and all other persons." Under this plea, possession at the commencement of the suit must be taken as admitted, and proof thereof was unnecessary.

2. At the conclusion of the evidence the court made this finding or declaration of law: "The proposition that the land in question was formed by natural accretions to plaintiff's land on the main shore is not proven by the evidence." No other declarations of law was asked by either party, or given by the court. The ground upon which the court reached its conclusion is not left in doubt. Plaintiff's only claim of title to the land was that it was formed by accretions to his original tract. The finding of the court, as stated, involved this proposition of law: If the land in question was not formed by natural accretions to his land on the main shore, plaintiff could not recover. If this declaration announced a correct principle of law, and there was substantial evidence tending to prove that the land was not formed by natural accretions, the finding would be as conclusive, on appeal, as the verdict of a jury would have been. The evidence tended to prove that the land was formed against the bank of the river opposite lot 4 by reason of artificial dikes and other obstructions to the water between Duncan's Island and the main shore, and by filling the slough by the railroad company and the defendant city. The weight of the evidence was at least to the effect that neither the island nor slough, at the time the improvements were commenced, extended as far south as plaintiff's land. In view of the evidence, we must assume that the court distinguished between such accretions as are

formed by obstructing the flow of the water or changing the current by artificial means and such as are formed without artificial interference with the banks or the natural flow of the water. The qualification made by the word "natural," as used in the finding, clearly indicates this distinction. We think the law makes no such distinction. The riparian owner is entitled to the land formed by gradual and imperceptible accretions from the water, regardless of the cause which produced it. This right he cannot be deprived of by the acts of others over whom he has no control, and for which he is in no way responsible. It was pertinently said by Mr. Justice Swayne, in St. Clair Co. v. Lovingston, 23 Wall. 66: "It is insisted by the learned counsel for the plaintiff in error that the accretion was formed wholly by obstructions placed in the river above, and hence that the rules upon the subject of alluvion do not apply. If the fact be so, the consequence does not follow. There is no warrant for the proposition. The proximate cause was the deposit made by the water. Whether the flow of water was natural or affected by artificial means is immaterial." See, also, Halsey v. McCormick, 18 N. Y. 149; 3 Washb. Real Prop. 353. From the evidence and declaration of law given by the court it is evident that the court took a different view of the law, and we must hold that error was committed in using and applying the word "natural" to qualify the accretions to which plaintiff would be entitled. 3. The evidence showed very conclusively that Duncan's Island formed in the midst of the river many years ago, and for a time the navigable part of the river was detween it and the main shore. The evidence also has some tendency to prove that the land now in dispute constituted a portion of the island, or was accretion to the island, rather than to the shore. If, on a new trial, either proposition should be proven true, then plaintiff could have no claim to it as accretion. These principles are well settled in this state. Benson v. Morrow, 61 Mo. 347; Buse v. Russell, 86 Mo. 211; Naylor v. Cox, 114 Mo. 232, 21 S. W. 589; Rees v. McDaniel, 115 Mo. 145, 21 S. W. 913; Cooley v. Golden, 117 Mo. 48, 23 S. W. 100.

4. Was the judgment for the right party, regardless of the error committed? Defendant, on the trial. read in evidence a paper signed by Mr. and Mrs. Lynch, dated in 1851, which by its terms gave, granted, and conveyed to the city of St. Louis the right to open certain named streets, and authorized the said city to locate and construct, on dry land held or claimed by them, a wharf 265 feet wide, according to designation on accompanying map, "to have and to hold the same. as the same is established in Ordinance No. 2596, for the use of a wharf, to be under the entire control and management of said city." This paper was duly signed by both Mr. and

Mrs. Lynch, but was not sealed or acknowledged by either of them. By Ordinance No. 2596, approved March 29, 1851, a wharf from Plum street to the southern limits of the city was established. This wharf, as described in the writing and ordinance, would include a portion of the land in dispute. The written instrument, not having been acknowledged by Mrs. Lynch, is void as a release or dedication by her. The statute in force at that time gave her no power to convey her interest in land the legal estate of which she held, except by deed duly ac knowledged. Hoskinson v. Adkins, 77 Mo. 538. Whether the instrument would operate as a license, as claimed, need not be considered, as it does not appear that the city has ever taken possession under it, and improved the property as a wharf. After 40 years of nonuse we may reasonably assume that the license, if one was given, has been revoked. Indeed, since the date of the alleged license it very conclusively appears from the evidence that plaintiff has made such use of the property as implies a revocation thereof. The evidence shows quite conclusively that the property was leased by plaintiff for a number of years subsequent to 1851, and was used by the lessee in a manner inconsistent with its use by the city as a wharf. The case of Moses v. Dock Co., 84 Mo. 244, is cited by counsel for defendant as sustaining his position that the instrument would operate as a license. It will be seen that, though in that case the same instrument was under review, it was legally executed by the parties therein interested, and it was held that, inasmuch as the city took the undisputed possession of the property, through its lessees, there was a complete dedication. It was also declared as a fact, deduced from the evidence in that case, that "the property had at all times since 1859 been treated by all parties as a part of the wharf." There was no question in respect to an executory and unused license in that case. "A mere license may exist by parol, and ordinarily is not assignable, and is revocable unless it has been executed, and the party has incurred expense on the faith of it, so that he would be injured by the revocation of it." Baker v. Railroad Co., 57 Mo. 272, and cases cited.

5. It appears from the evidence that in 1855, in a proceeding for partition, that part of lot 4 lying between Columbus street and Front street was subdivided by commissioners into lots and streets. Front street was at the time the west boundary of the original city wharf. In 1859, Lynch and wife conveyed to Thomas Marshall certain lots assigned to them by the commissioners, which abutted on Front street. It is insisted now that this conveyance carried the title of the grantee to the river bank, and included the land in question, and therefore an outstanding title was shown to be in Marshall. A plat of the sub livision was filed by

the commissioners with their report. This plat showed Front street as having a width of 140 feet, and a wharf adjoining and next the river, having a width of 125 feet. The certificate of the commissioners written upon the plat declares that Front street and the wharf "are opened for the sole and special use and benefit of the owners of the sev eral lots fronting thereon, and are not declared or set apart as public highways, or for public use." The land in suit is included in the wharf as shown by the plat. A sale to Marshall was of designated lots. The eastern boundary of these lots was Front street, and the title of Marshall under his deed did not extend beyond this boundary. Ellinger v. Railway Co., 112 Mo. 526, 20 S. W. 800; City of St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 22, 21 S. W. 202, and cases cited. Marshall, as the owner of these lots, has a mere easement in Front street and the wharf, but this right is no bar to an action of ejectment against a stranger. City of St. Louis v. Missouri Pac. Ry. Co., supra.

The question of adverse possession was not passed upon by the trial court, and we will not consider it here further than to say that the evidence did not show, as a matter of law, that defendant had been in possession of the land for a period sufficient to bar the action. Reversed and remanded. All con

cur.

FIELD v. MARK et al. (Supreme Court of Missouri, Division No. 2. Dec. 18, 1894.)

DISQUALIFICATION OF JUDGE-WAY OF NECESSITY -DEDICATION.

1. Rev. St. § 3322, providing that, whenever the judge of any circuit court shall for any cause be unable to hold court in his circuit, he may request the judge of another circuit to hold it for him, applies to the trial of an action to which a circuit judge is a party.

2. The mere fact that a strip of land, if used as an alley, would be a great convenience to property, does not make it a way of necessity.

3. The fact that an owner of land permitted the public generally to pass over a strip of the land, in connection with the use of the strip by himself and his tenants, does not show an intent on his part to dedicate the strip to the public use, where at times he maintained gates across the strip, and performed other acts of ownership.

Appeal from circuit court, Lafayette county; Charles W. Sloan, Special Judge.

Action by Richard Field against Edward Mark and another to remove obstructions from a strip of land claimed to be an alleyway. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

Plaintiff, by his action, seeks to have removed certain alleged obstructions from parts of lot 1, block 45, First addition to Lexington, being a strip of 5 feet in width, extending from Laurel street west about 40 feet, and also a strip about 10 feet wide, extending from the alley through said block north about 60

feet; claiming that the said strips constitute private ways or alleys, and that the same had been obstructed by the defendants. The allegations of the petition are traversed by the answer, and absolute ownership of the parts of said lot claimed as alleys is alleged to be in the defendants, and, further, that defendants and those under whom they claim title have been in the open, continuous, peaceable, and adverse possession as such owners for more than 10 years next before the beginning of the suit. These allegations are put in issue by the reply. Block 45 was divided into regular lots, 20 in number, 6 being on each side of an alley 20 feet wide running east and west through the said block, Main street being on the north, and Laurel street on the east, of the said block,

and lot No. 1 being the east and north lot in the tier of lots, having the said Main street on the north, Laurel street on the east, and the public alley on the south. See plat.

Samuel Wilson, now deceased, became the owner of lot 1, and also subsequently of 6 feet and 3 inches off of the east side of lot 2, which gave him a frontage of 60 feet and 3 inches on Main street by 140 feet back to said alley. At this time the entire property was vacant. In 1864 he conveyed to Caroline Mitchell a part of lot 1 out of the southeast corner, being 20 feet on Laurel street, running back along the alley 40 feet, and in April, 1867, he also conveyed to said Caroline Mitchell another part of lot 1, being 40 feet on Laurel street by 40 feet deep, and just north of last place; and in the same month, 1867, he

PLAN

on Lots 1&2, Block 45 Lexington, Mo.

OF BUILDINGS

RE Lee

Building

M

Butcher and Grocer

.D

Turner's

Hall

conveyed to Alexander Mitchell, Stephen G. Wentworth, and William Morrison (afterwards Morrison-Wentworth Bank) a portion of lot 1 out of the northeast corner, being 20 feet on Main street, running back 75 feet. This left the title in Samuel Wilson, as will be seen, of a strip 5 feet wide between the Morrison-Wentworth Bank and the last property conveyed to Caroline Mitchell, running back 20 feet, and abutting on the ground or parcel next below described. It also left a strip next to the Morrison-Wentworth Bank of 20 feet on Main street by 60 feet deep; also, 10 feet off of the west side of lot 1, and 6 feet and 3 inches off of the east side of lot 2, making 16 feet and 3 inches on Main street, and running back 140 feet to the public alley, Soon after these conveyances, respectively, Mitchell built upon the piece first conveyed to his wife, in the southeast corner, a blacksmith shop, which covered the entire space of 20 by 40 feet; the Morrison-Wentworth Bank erected a building practically covering their entire lot; while Samuel Wilson built two storerooms, two stories, covering his entire frontage on Main street, and running back 75 feet. Plaintiff, by mesne conveyances, became the owner of the Caroline Mitchell 60 feet fronting on Laurel street, and 40 feet deep, and abutting on the south of the 20-foot public alley in the center of the block. Samuel Wilson died seised of record of the 36 feet and 3 inches fronting on Main street, adjoining the Morrison-Wentworth Bank building, and running back, the east 20 feet 80 feet, and the west 16 feet and 3 inches 140 feet, to the alley in the center of the block, and a strip 5 feet in width and 20 feet long, lying between the Mitchell property and Morrison-Wentworth Bank building. His estate was duly partitioned, and all of the last above described tracts or parcels were assigned to his widow, Mrs. Jane H. Wilson, in fee. In March, 1887, she conveyed all this land to William and David Smith by warranty deed. In the suc ceeding April, David and William Smith conveyed the east half of the front on Main street to S. G. Wentworth and William Morrison by warranty deed, and included the 5 feet between the bank and Mitchell 60 feet on Laurel street, and a strip 8 feet wide back to the alley, and adjoining the Mitchell lots on the west, with right to passage in the stairway leading up to the building in the rear, and reserving the right to use, occupancy, and right of ingress and egress over the passway of 5 feet in the rear of the bank, and the continuation of said line to west line of said property conveyed. In October, 1887, Wentworth and Morrison conveyed the last-described tracts by the same description by warranty deed to Edward Mark, reserving a right of way over the strip of 5 feet. In 1891 the defendants, Edward and Herman Mark, bought the west half of the lots fronting on Main street, and adjoining the last-described tract, and all the remainder of the Samuel Wilson tract. Defendants thus became the record

owners of the two tracts in which plaintiff claims the easement of a private alley. After the purchase by Caroline Mitchell, as before said, she sold off of the north end of No. 2 a strip 20 feet on Laurel street, running back 40 feet. On this ground Klug erected a two-story brick building running back about 25 feet, leaving a small yard in the rear, which was fenced, having two gates,-one to the north, opening into what is claimed as the 5foot alley; one to the south, opening into the lot between this building and the blacksmith shop, out of which there was another gate opening onto Laurel street. Klug, if he desired a side entrance, instead of leaving one out of his own property, covered the entire frontage with his building, the lower part of which was used as a shop, with a stairway running to the second story, which was used as a residence. Shortly after the purchase of the first tract (20x40) by Caroline Mitchell, her husband, John A. Mitchell, built a brick blacksmith shop covering its entire dimensions, and with a door in the rear, opening upon the 10-foot strip in controversy, which was used by the blacksmith as a way in and out of his shop for horses, which were forbidden by city ordinance from being led on the sidewalk to enter at the front. This building was erected, and this use of the strip was made, with the knowledge and consent of Samuel Wilson, who also about that time built, conjointly with Mitchell, a double brick privy west of the blacksmith shop, and just beyond the 10-foot strip, on the west side of lot 2, then also owned by Wilson. Wilson and Mitchell together marked off the side of this privy, and one part of it was used in connection with the shop until it was torn down, in 1887, by the Smith Brothers. Plaintiff claims this as an act of Wilson marking the width of the alley at the south end, and dedicating it to public use. At the north end of the 10-foot alley, just south of the 5-foot alley, and just west of the 10-foot alley over on lot 2, Wilson constructed a cistern, which is claimed by plaintiff as marking the western limit of the 10-foot alley at its north end, and the southern limit of the 5-foot alley at its west end. The 5-foot alley was paved throughout with brick at an early day, probably just after the buildings were erected, and so kept until the suit was brought. The middle 20x40 was never built upon, but used as a yard for storing odds and ends from the blacksmith shop, and a fence was always maintained on its west side next to the strip in dispute. During most of the time a fence was maintained west of the strip, running from the brick privy north. All of the deeds from Samuel Wilson were by metes and bounds, describing the property as so many feet on certain streets, running back to designated monuments (stakes), and contained no reference whatever to any private alleys or rights of way. The evidence on both sides tends to show that the entrance on Laurel street to the 5-foot strip was generally open, and the adjoining proprietors and ten