LIMITED CONCURRING OPINION. [5] My vote concurring in the reversal and remanding of this cause generally, and without directions to enter judgment for the appellant city, is based on the following reasons. In Division 2 the present majority opinion of the court en banc was adopted by all the judges thereof. But respondents' counsel filed a motion for rehearing verified by the affidavit of counsel [as in the case of motions for new trial in the trial courts alleging newly discovered evidence] stating that the so-called "ancient document" plat shows each square block as a square inch, representing 400 feet, and each inlot as of a width of ¼ inch, making it 100 feet wide, whereas the records definitely show each square block is 417.5 feet wide, and each inlot 104 feet, 4.5 inches wide. In other words, as to the square blocks there is an error of 17.5 feet, and as to the inlots one of 4.5 feet. The affidavit further alleges these errors apparently are compensated for by showing the streets wider than they really are.
North and south, the plat covers all the territory between the Missouri River and Atchison Street; and east and west nearest to the River it extends from Clark Street to a point over six blocks west of the mouth of Ware Creek, and thence angles northeasterly, or easterly, back to Atchison Street. The plat includes all the main business district of Jefferson City and the South Side, and a substantial part of the residential section. The principal opinion shows that up to 1898, fifty years ago, inlots and outlots were conveyed by number, but after that by metes and bounds — indicating some uncertainty as to the former descriptions.
I find nothing in the opinion showing that conveyances within the area covered by the plat, and according thereto, have been found *Page 1032 correct through the years. Its origin is [437] obscure. Nevertheless the principal opinion admits it in evidence although the trial court rejected it. The statute of limitations does not run against the City. And if the plat is incorrect the consequences may be serious as to much valuable real estate. Because of these facts Division 2 transferred the cause to the court en banc on the court's own motion in order that it might be reargued. I am unable to see that it has been cleared up. While unable to say on the record that the judgment of the trial court should be affirmed, neither do I think it should be reversed outright. In my opinion the cause should be reversed and remanded for another trial, at which these questions may be settled.