APPEAL from the Circuit Court of Madison County; the Hon. JOHN
L. DeLAURENTI, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 26, 1981.
The plaintiff City of Alton appeals from the judgment of the Circuit Court of Madison County declaring that the use of lands in Alton for a proposed highway would be inconsistent with the dedicators' intent that grounds adjacent to the Mississippi River be used as a "common" or "promenade" and as a "landing." Robert Carroll and Sam Thames, citizens of Alton, and the Attorney General, on behalf of the general public, opposed the city's request for a declaratory judgment that the use of the premises for a highway was within the purposes of the dedications and that the city had the right to convey its interest in the premises to the State. Following a bench trial, the court denied the relief sought by the city and dismissed its complaint with prejudice.
In 1818, Rufus Easton platted the "Town of Alton." A portion of Easton's plat, which was attached as an exhibit to the city's complaint, is reproduced in this opinion. The city lies on the north bank of the Mississippi River which flows in a generally westerly to easterly direction at this location. At the southwest corner of the platted land is an area designated "ground for use of landing." Between Front Street and the river moving east from the landing ground are two blocks marked "reserved" and a larger area marked "common or prominade to be used in common."
On this plat appears a "Memorandum and Condition" subscribed by Rufus Easton, stating as follows (without alteration of the original spelling):
"This town is laid out on the express terms and conditions that the exclusive right of Ferrying to and from the same is reserved to the undersigned proprietors of said Town, his heirs and assigns forever and the landing ground, streets, roads, Commons and ways to and from the river Mississippi are to be used as rights of way in Common only to all persons except as to the right of Ferrying as aforesaid which right and privilege of Ferrying or establishing or keeping of a Ferry or Ferries in said town cannot be acquired by any owner or purchaser or grantee of a lot or lots, or by any body politic or corporate or any person whatsoever but by purchase or discent from the proprietor, his heirs or assigns, and it is expressly understood that all streets, roads, commons and ground set apart for landing of vessels or boats or for loading or unloading or other publick use are laid out on the terms and conditions above expressed of which all persons will take notice."
In 1850, William Russell's Addition to Alton was platted of record. A copy of this plat was also attached to plaintiff's complaint as an exhibit. The lands in this addition lay along the river immediately to the east of the lands dedicated by Easton. On Russell's plat, an area several blocks long next to the river was designated "Public City Commons." William Russell subscribed the following dedicatory language:
"This instrument of Writing Witnesseth: That William Russell assignee of the Patentee of the Northwest fractional quarter Section Thirteen (13) of Township Five (5) North in Range Ten (10) West from the Third Principal Meridian, and owner thereof in fee simple, caused the same to be surveyed and laid off, into Blocks, fractional Blocks, Lots, Streets, Alleys, etc. on and prior to the 11th day of August A.D. 1837, and a Plat thereof to be made as above represented and shown, called `William Russell's Addition to Alton which Plat will now be fully and legally authenticated and recorded for the purpose (with the explanations and certificate of the Surveyor thereon) of evidencing the size and locality of all the Blocks, fractional or parts of Blocks, Lots and fractional Lots, and also of the width of the Streets and alleys upon said fractional quarter Section and of the `Public City Common,' on the River as represented by and upon the above Plat, all of which Streets and Alleys shall be and forever remain open Public Highways, and the said `Public City Common', a public ground of the City, never to be owned as individual or private property."
The plat also contains Charles Hunter's subscribed statement that he was the owner of certain parcels represented in the plat and that he adopted the plat and annexed writings.
The strip of land between Front Street and the river has been greatly widened by both natural accretion and artificial means. Photographs and maps introduced by the parties show that the land is divided in use between park-like areas and playing fields and commercial uses which include railroad tracks and related commercial buildings, public parking lots, railroad and highway bridges leading over the river, and the federally constructed and operated Alton Lock and Dam.
The city's only witness was Charles H. Sheppard, a civil engineer since 1917, with extensive knowledge of the use and development of the land in question. Among the exhibits introduced by the city was a series of plats prepared by Sheppard's firm of sections of the proposed raised, limited-access highway. The highway would run roughly parallel with Front Street about 600 feet to the south and then curve toward Front Street and cross directly over the "ground for use of landing" near Front and Market Streets on Easton's plat. The highway would also cross over a small portion of the westerly block marked "reserved" on Easton's plat. Aside from these areas, the highway would be located entirely on grounds Sheppard testified consist of manmade fill. These grounds would include the park and playing field areas. The present distance from the intersection of Front and Henry Streets to the river is about 1300 feet. Moving westward, the land narrows, and the distance from the intersection of Market and Front Streets to the river is about 540 feet.
Sheppard also testified that opposite the intersection of Henry and Front Streets, the highway would be 5 feet high. The elevation would increase moving eastward to about 31 or 32 feet opposite the "reserved" blocks on Easton's plat. At this point, the right of way on the ground beneath the highway would be about 280 feet wide.
The city introduced and the court admitted deeds of Easton and Russell which make reference to their dedication of the landing and common areas. The court also admitted the city's exhibits consisting of a 1935 U.S. District Court order vesting title in the United States government of riverfront for the Alton Lock and Dam and a 1953 order of the City Court of Alton authorizing the city to install and operate parking facilities on Lincoln-Douglas square, which is substantially the same area as the "ground for use of landing" on Easton's plat. However, the court refused to admit city ordinances permitting construction of railroad tracks and various other uses.
A biography of Rufus Easton introduced by the defendants states that he was born in 1774 in Litchfield, Connecticut, where he began the study of law; he became a prominent attorney in Rome, New York; he spent the winter of 1803-1804 in Washington, D.C.; he moved to St. Louis where he was appointed by Thomas Jefferson judge of the Louisiana Territory and postmaster of St. Louis; and he served as a delegate to Congress from the Territory of Missouri for four years after being elected in 1814. Defendants also introduced documentary evidence that Easton and Russell were partners and copies of 1818 Missouri newspapers containing advertisements placed by Easton for the sale of lots in Alton. ...