Lowery v. Kansas City

ON MOTION FOR REHEARING. Appellant's motion for rehearing says that the statement in the opinion that "the city never owned and operated the bridge" is incorrect. Appellant says that the city "did own the bridge for one day" and that "its ownership of the bridge automatically converted this public highway into a public street;" and that "this fundamental error of the court entirely destroys the foundation of the opinion herein since the whole opinion rests on the court's conclusion that the place in question was not a public street." Appellant's contention is based upon the fact that, although there was only one written instrument which was signed by all parties, which provided for the transfer of an easement over the upper deck of the bridge from the bridge company to the city and county, and from the city and county to the State, the bridge company, Kansas City and Clay County executed and acknowledged the instrument on July 14, 1927, at Kansas City, while it was executed and acknowledged by the State Highway Commission on July 15, 1927, at Jefferson City.

Certainly this instrument was intended to cover the entire transaction to get the title to the easement from the bridge company to the State and did not go into effect piecemeal, step by step, as each party signed and acknowledged it. On the contrary, in the absence of any showing otherwise, we must hold that this instrument, like any other instrument of conveyance, went into effect only when all parties had signed and acknowledged it and it was delivered to the State. Moreover, it did not purport to convey the easement outright to Kansas City but conveyed "unto said city, its assigns and successors an undivided nine-tenths interest and unto said county, its assigns and successors an undivided one-tenth interest in and to said bridge . . . subject to the reservations herein stated . . . for the purposes of establishing and maintaining a free public highway only over the upper deck thereof across the Missouri River, *Page 61 connecting Kansas City, Missouri, with Clay County, Missouri, for the free passage of wagons, automobiles, vehicles of all kinds, animals and pedestrians," which purposes the whole instrument shows were to be accomplished by making the same a part of the State highway system. As we have held, when this instrument became effective. "the bridge ceased to be a toll bridge" and immediately "became a part of the State highway system." This was, as we have pointed out, all done pursuant to a statute which authorized the free tender to the State of "any easement over any privately owned bridge" acquired with local funds, and which provided that the same should be "part of the state highways" and "be maintained by the State Highway Commission." We, therefore, adhere to our ruling that it never became a public street of Kansas City.

Appellant still argues that even though the State routes one of its highways over a city street, the city is not relieved from its duty to maintain it in a safe condition for travel. That argument does not apply to this case because we hold that the upper deck of this bridge never became a street of Kansas City but was changed directly from a private toll bridge to a part of the State highway system. The other points raised in the motion for rehearing were made and argued in appellant's original brief and are ruled by the opinion.

The motion for rehearing is overruled.