Artz v. Bannan, 17755.

• Citation: 71 S.W.2d 795
• Decision Date: 30 April 1934
• Docket Number: No. 17755.,17755.
• Parties: ARTZ v. BANNAN et al.
• Court: Court of Appeal of Missouri (US)

71 S.W.2d 795

ARTZ v. BANNAN et al.

No. 17755.

Kansas City Court of Appeals. Missouri.

April 30, 1934.

Rehearing Denied May 21, 1934.

Appeal from Circuit Court, Miller County; W. S. Stillwell, Judge.

Action by C. A. Artz against T. B. Bannan and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

R. F. White, of Eldon, for appellant.

Irwin & Bushman and Harry L. Buchanan, all of Jefferson City, for respondents.

SHAIN, Presiding Judge.

The plaintiff, C. A. Artz, is the owner of a parcel of land stated as situated in the south part of the city of Eldon, Miller county, Mo., lying on the east side of Aurora street in said city and fronting thereon. Plaintiff's land is improved; there being, thereon, a dwelling and outbuildings and on the northwest corner thereof a building used as an oil or gas filling station.

North of the land of plaintiff, Missouri U. S. Highways No. 54 and Missouri State Highway No. 52 form a junction; these highways, from said junction, follow said Aurora street in a southern direction to and past the land of plaintiff.

From a point near the northwest corner of plaintiff's land, said highways bear to the west from plaintiff's land. It appears that the filling station on the plaintiff's land is situated at about the point where the highways begin to deflect to the west, there being no obstruction or break in the ground between said filling station and the deflected highways.

It appears that the defendants T. B. Bannan and Lucile Bannan own a parcel of land immediately west of the land of plaintiff but separated from plaintiff's land by said Aurora street. Defendants' land is occupied by the defendant McClelland.

The plaintiff alleges that the defendants have wrongfully and unlawfully appropriated and taken possession of and continue to remain in possession of said Aurora street south from the point where the said highways diverge; that defendants have erected and placed thereon a number of cabins or camps, same being directly in front of plaintiff's dwelling, and have also erected a building used as an oil and filling station; and that the defendants have further taken possession of said street by erecting a fence running north and south from their oil station and across the natural and normal line of motor travel approaching from the south along the highway, thus cutting off direct access to the filling station situated as aforesaid on plaintiff's land. Plaintiff for cause of action alleges that by the situation, as above described, motor vehicles are diverted away from plaintiff's filling station.

Further, plaintiff alleges that Aurora street in front of his property is narrowed to a lane instead of a full street; that the view from plaintiff's home is obstructed; that the operation of the tourist camp by defendants in front of his premises disturbs plaintiff's peace and quietude; and that for reasons stated plaintiff's property is rendered less valuable to plaintiff's damage in the sum of $5,000, for which plaintiff asks judgment.

The defendants by joint answer deny the occupancy of the street by their improvements, and present that the premises owned and controlled by them have been in the peaceful and uninterrupted possession of themselves and those under whom they hold for over thirty years before the filing of this suit; that the lines of their property as evidenced by buildings and fences in question conform to the original survey and original recorded plat of the city of Eldon in Miller county, Mo.; and that their said improvements conform to improvements along the western side of Aurora street of said city.

Defendants further answer by pleading that plaintiff stood by and saw defendants erect the improvements in question and saw them expend large sums thereon without complaint, and by reason thereof they are now estopped from making complaint.

Trial was by jury resulting in a verdict for defendants. Judgment was entered in accordance with verdict, and the plaintiff has appealed.

Plaintiff makes assignments of error, as follows:

"1. The court erred in overruling plaintiff's motion to `strike out' all that part of defendants' answer beginning after the word `thereof' in the seventeenth line, and ending in line thirty with the word `petition' which pleads the `Statute of Limitations,' as said statute does not apply to streets or other lands appropriated to public use.

"2. The court erred in allowing defendants to introduce oral testimony to impeach and invalidate the public records and to impeach the survey made by the surveyor of Miller County.

"3. The court erred in allowing, over the objection of plaintiff, the introduction of testimony wholly incompetent, and immaterial to the issues, especially the testimony of Heman Ross, page 196 of abstract, and of Gaylord Haynes at page 171 of abstract. S. J. Kennedy at page 202 of abstract, and testimony of Richard Fowler at page 128 of abstract.

"4. The court erred in giving, at the request of defendants, Instructions G, E and H, as said instructions could be understood by the jury only as allowing the application of the `Statute of Limitations.'"

Opinion.

There is no evidence shown in this case upon which the appealing plaintiff can be awarded damages by reason of the manner of conduct of the business conducted on the premises occupied by defendants. Plaintiff's case resolves itself to a claim of damage by reason of the improvements, erected and operated by defendants, obstructing the view and deflecting traffic away from the filling station maintained on plaintiff's premises, thereby making the land of plaintiff less valuable. The plaintiff's case must therefore stand or fall on the one issue of fact as to whether or not the matter complained of is due to the fact that defendants have appropriated a part of a public street in front of plaintiff's premises, so as to produce the damaging result of which plaintiff complains.

Two difficulties confront this court in its review of this case, to wit: The evidence is voluminous and is presented in such a manner that it fails to impart understanding to a court of review. Again, the specifications of error in appellant's (plaintiff's) brief fails to specifically point out wherein error lies.

The record filed herein comprises over three hundred pages. There are exhibits by way of plats and drawings shown in the abstract that are supposed to present detail of location, relative position, and general outline of the premises involved in this suit. The evidence discloses further that other plats, drawings, or maps were used in the interrogation of witnesses, which plats and drawings are not contained in the abstract of record printed and filed herein. There is voluminous testimony shown in the record wherein the inquiry is directed to the showing of these exhibits. The trial court and the jury, having these exhibits before them, presumably interpreted intelligently the testimony directed to the showing therein. This we cannot do by reason of the fact there is no showing in the record indicating the point to which witness was directed, nor even as to what exhibits were being referred to.

To illustrate, evidence is based upon a red line to which the witness is directed. There is no red line shown in any exhibit before us. Much of the evidence is directed to "an opening here," or "a point there." There is nothing in the record which directs us to what opening or to what point. Again, lots by number are pointed out to the witness and his testimony is concerning locations in reference to the lot. There is no plat or drawing shown in the record wherein lots are platted or numbered. One witness designates two dots, where located, or on what exhibit shown, is not designated. From these two dots the witness' testimony leads us to a flower bed and the location in the witness' mind is made lucid by stating the location to be, "from twenty feet back of the point up to the point."

Concrete examples are shown in the following questions and answers:

"Q. If there was a mistake in the original survey and if you went to locate a street it is your business, as a surveyor, to find that mistake and conform your survey to it, isn't it? A. If it was for the city I would.

"Q. The distance is not shown from the city limits over to this corner here? A. No, sir, it isn't.

"Mr. Kay: The city runs clear over here, doesn't it? A. No, sir.

"Mr. Kay: This is just a random line? A. It shows the line, but no distance.

"Mr. Kay: It wasn't used as a tie line, was it? A. I don't know whether it was or not."

Another illustration:

"Q. I'll get you to step here to the plat a moment, again. These lots here—lot 8 in this block, is shown by the plat to be 100 feet in length? A. I think so.

"Q. And that would make 212 feet from this point to here, would it not? A. Yes, sir.

"Q. Now, if that is 212 feet from here to here, then I'll ask you whether or not that red line is in the correct place, if there is a jog of 180 feet there? A. It's hard to tell what that distance is; let's see—100-133-145—

"Q. (interrupting) That would run it 35 feet over into this lot here? A. Yes, sir.

"Q. Approximately one-third of that lot, wouldn't it? A. Yes, sir.

"Q. It doesn't show...