Appeal of Moore

• Decision Date: 24 January 1953
• Docket Number: No. 38796,38796
• Citation: 173 Kan. 820,252 P.2d 875
• Parties: Appeal of MOORE KELLER et al. v. MOORE et al.
• Court: Kansas Supreme Court

Page 875

252 P.2d 875

173 Kan. 820

Appeal of MOORE KELLER et al. v. MOORE et al.

No. 38796.

Supreme Court of Kansas.

Jan. 24, 1953.

Syllabus by the Court

1. An official survey merely establishes corners and boundary lines. It does not determine title to property in dispute.

2. Where parties by mutual agreement fix a boundary line and thereafter acquiesce in the line so agreed upon, it must be considered as the true boundary line between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession.

3. The owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed upon, will be binding upon the parties and their grantees. Such an agreement, followed by possession, is not obnoxious to the statute of frauds.

4. Even though a line agreed upon by adjoining property owners be not exactly correct it becomes the true dividing line between the lands by virtue of such an agreement, even if a subsequent survey should establish a different boundary line.

5. A sheriff's deed to a purchaser at a tax foreclosure action operates to convey title only (a) to land described in such proceedings and ordered to be sold and not to other land described in the sheriff's deed and (b) to the land on which taxes are due and unpaid.

6. The record in consolidated actions, one of which involves an appeal from a survey of block 108A in the city of Coffey ville and the other a mortgage foreclosure on lot 6, block 108, which adjoins block 108A on the north, examined, considered and held: The owner of lot 6, block 108 had legal title to the strip of land in controversy.

A. R. Lamb, of Coffeyville (Clement A. Reed, of Coffeyville, on the briefs), for the appellants.

Roy Kirby, County Atty., Coffeyville (Clement H. Hall, of Coffeyville, on the briefs), for the appellees.

WEDELL, Justice.

This is an appeal from a judgment in two cases which were consolidated for trial.

One case involved an appeal to the district court by Ivan H. Moore from a 1950 survey made by the county engineer of land referred to as block 108A in the city of Coffeyville. The other is a mortgage foreclosure action on lot 6, block 108, which is adjacent to and immediately north of block 108A. Although the tracts are referred to as blocks there is no street between them. Both tracts front west on Walnut street.

A few general statements, eliminating details to be disclosed later, will help clarify the background of the actions. The primary dispute is one of ownership of a strip of ground containing a west frontage of 32.5 feet.

In 1946 Ivan H. Moore purchased the north tract, lot 6, block 108, which for brevity will be referred to hereafter as block 108. He had the title thereto examined by his attorney. A sketch contained on the first page of the abstract of title to block 108 disclosed that land had a 490 foot west frontage on Walnut street. The abstract contains nothing to indicate a shorter frontage.

In 1909 people by the name of Carpenter owned both block 108 and block 108A and in 1909 they had block 108A platted. That plat recites block 108A begins at the southwest corner of block 108. Thereafter follows a description to the south, east, north and back west to the southwest corner of block 108. The Carpenter's first conveyance of block 108A was to Lawrence E. Hower and his wife. The property was described as:

'All Block 108 'A' in the City of Coffeyville, according to the recorded plat thereof.' (Our italics.)

In 1944 the Howers conveyed the same property to Charles W. Morris and Glen Morris.

In 1948, Moore, the owner of the north tract, or block 108, desired to build a filling station thereon. Soon after acquiring title thereto in 1946 Moore had discussed the location of the dividing line between these tracts with the Morrises. The parties agreed the dividing line was within two or three feet of a gas meter located near Walnut street. That meant the Morrises agreed that block 108A which they had purchased began at the southwest corner of block 108 and was located south thereof. This was in conformity with a 490 foot frontage on Moore's block, 108, and included the 32.5 feet now in controversy.

However, in order to make doubly certain as to the exact location of the dividing line before building and leasing a filling station on the south part of block 108 Moore requested the county engineer to make an official survey of his ground. As a result of such survey in 1948 it was determined the line was almost exactly where Moore and the Morrises previously had agreed it was. This survey likewise disclosed a west frontage on block 108 of 490 feet. That 490 foot frontage on block 108 also corresponded with the 1896 city plat. The county engineer set iron pins at the four corners of block 108 which fixed the south line thereof at points including the 32.5 feet now in controversy. The survey was recorded. The Morrises were not notified of the survey but the result thereof, as stated, was in harmoney with their previous agreement with Moore.

The Morrises do not now own block 108A. The contest is not with them but with others who will be indicated presently. After the completion of the 1948 survey Moore directed the attention of the prospective lessees of the filling station to where the south boundary line of block 108 had been fixed by the surveyor. The location was satisfactory to the prospective lessees. However, in order to bring the ground to street level on Walnut street Moore was obliged to cut it down about three feet for a distance of some 200 feet at the extreme south end of block 108 which he was about to lease. Moore also blasted out of solid rock a space for a septic tank which he located on the 32.5 foot strip. He expended between $5,000 and $7,000 on a filling station and appurtenances. The record does not disclose whether any portion of the filling station buildings are on the 32.5 foot strip of ground. The evidence discloses the driveway to the filling station enters at the southwest corner of the 32.5 foot tract where the surveyor had set the pin to designate the southern boundary of block 108.

Moore testified he had paid the taxes on the entire 490 foot tract which included the strip of 32.5 feet and the city required him to keep the weeds thereon mowed. On April 14, 1950, Moore executed a lease on the south 200 feet of block 108 for filling station purposes for a five year term and included an option to the lessees to renew the lease for an additional five year period on termination of the primary term. It appears the taxes on block 108A had been in arrears for a period of at least three years. The county of Montgomery instituted a tax foreclosure action. The petition, judgment, order of sale, sheriff's notice of sale, publication notice and all other proceedings prior to the sheriff's deed described the property to be sold for taxes as follows:

'Block 108A, Original, City of Coffeyville (Northwest corner is Four Hundred Ninety (490) feet south of the southeast corner of 15th and Walnut Streets) * * *.'

The sheriff's deed to the purchaser, C. G. Buton, who was the highest bidder at $36, contained the description 'All of Block 108A, Original City of Coffeyville.' The Morrises, as owners of property to be sold, were made defendants in the tax foreclosure action. Ivan H. Moore was in possession of the 32.5 foot strip by tenants who were operating a filling station thereon. He was not made a party defendant. The tax deed was issued and delivered to C. G. Buton November 8, 1950. On November 20, 1950, Buton and his wife gave a quit claim deed to Robert Kloehr and Mildred Kloehr, describing the property as 'All of Block 108A, Original City of Coffeyville.' Robert Kloehr was one of the county commissioners of Montgomery county.

On December 4, 1950, Robert Kloehr requested the county engineer who had made the 1948 survey of block 108 to make a survey of block 108A. Although Ivan H. Moore was in possession of the 32.5 feet of land by tenants to whom he previously had given a lease beginning April 15, 1950, neither he nor the tenants was notified of the survey. The surveyor notified Moore of the results of the survey after it was completed. In this last survey the north line of block 108A was placed so as to produce an overlap on block 108 to the extent of 32.5 feet. Following that survey the Morrises executed and delivered a quit claim deed to the 32.5 feet in controversy to Ivan H. Moore. It is from the last survey that Ivan H. Moore appealed to the district court.

A mortgage foreclosure action on block 108 had been instituted by J. A. Keller and Lucile Keller in which they claimed a lien on block 108 contending their mortgage covered 490 feet of frontage which included the 32.5 feet of ground. The trial court held the 1948 survey was not binding on the owners of block 108A (the Morrises) for the reason it was made without notice to them and without their participation. The court held the 1950 survey was valid and also concluded title to the disputed 32.5 feet was in Robert and Mildred Kloehr, his wife. The Kellers and Moore have appealed to this court. As heretofore stated the foregoing is not intended to be a detailed and complete narration of the facts but only a general outline of events out of which these consolidated actions arose.

The trial court made findings of fact and conclusions of law which are appended hereto.

It will be observed the court did not include in its findings the facts previously narrated herein concerning the agreement between Moore and the Morrises as to what constituted the dividing line between blocks 108 and 108A. It is also observed the findings do not disclose the fact Moore made costly improvements on the property in controversy in reliance on that agreement and on the fact the first survey fixed the...