Basore v. Johnson

• Decision Date: 19 March 1985
• Docket Number: Nos. 13752,13756,s. 13752
• Parties: Joe N. BASORE and Ann Basore, Appellants and Cross-Respondents, v. David JOHNSON, Respondent and Cross-Appellant, v. Robert S. EDWARDS and Izella Edwards, Third Party Defendants, v. Leonard WELLS and Geneva Wells, Intervenors.
• Court: Missouri Court of Appeals

Page 103

689 S.W.2d 103

Joe N. BASORE and Ann Basore, Appellants and Cross-Respondents, v. David JOHNSON, Respondent and Cross-Appellant, v. Robert S. EDWARDS and Izella Edwards, Third Party Defendants, v. Leonard WELLS and Geneva Wells, Intervenors.

Nos. 13752, 13756.

Missouri Court of Appeals,

Southern District,

Division Two.

March 19, 1985.

Motion for Rehearing or Transfer

Denied April 4, 1985.

Abe R. Paul, Pineville, and John Sims, Ruyle, Sims & Lampo, Neosho, for Joe N. Basore and Ann Basore.

Herbert Douglas, Douglas, Douglas & Johnson, Neosho, for David Johnson.

CROW, Judge.

These consolidated appeals arise from a suit by Joe N. Basore and his wife, Ann, ("plaintiffs") against David Johnson ("Johnson") concerning real estate in McDonald County. The assignments of error are easier stated after a synopsis of the significant facts.

By warranty deed executed April 3, 1962, Robert S. Edwards and his wife, Izella, ("the Edwardses") conveyed--using an intricate metes and bounds description--certain land to Jesse W. Barnett and his wife, Kathryn, ("the Barnetts"). For the purpose of this opinion, it is sufficient to refer to the land conveyed by that deed as "tract A." At the time the Edwardses conveyed tract A to the Barnetts, the Edwardses owned other land adjacent to tract A. This adjacent land is identified hereafter as "tract B." The deed provided, among other things, that "as a further part of the consideration herein, the grantors covenant and agree with the grantees that no additional buildings shall be placed on [tract B]."

Fourteen years later, on July 8, 1976, the Edwardses, by warranty deed, conveyed tract B to Johnson. This deed made no mention of the covenant regarding tract B that appeared in the 1962 deed by which the Edwardses had conveyed tract A to the Barnetts.

Twenty-one months thereafter, by warranty deed executed April 24, 1978, the Barnetts conveyed tract A to plaintiffs. This deed was also silent regarding the tract B covenant in the 1962 deed from the Edwardses to the Barnetts.

In early 1979, Johnson erected a rectangular building, measuring 60.5 feet east and west by 41 feet north and south, along the north boundary of tract B. At that location, tract B abuts tract A, the north boundary of tract B being the south boundary of tract A.

A survey several months later by Howard L. Pratt, a licensed surveyor, revealed that Johnson's building, at its northwest corner, encroaches 4.06 feet on tract A, and at its northeast corner the building encroaches 5.99 feet on tract A.

Plaintiffs filed a two-count petition against Johnson. Count I prayed for the ejectment of Johnson from that portion of tract A occupied by Johnson's building, and for money damages. Count II alleged that tract B was subject to the covenant in the 1962 deed by which the Edwardses had conveyed tract A to the Barnetts. Johnson, according to Count II, violated that covenant by erecting the building. Count II prayed for an order commanding Johnson to remove the entire building or, in the alternative, an award of money damages.

Johnson answered plaintiffs' petition with sundry affirmative defenses that need not be recounted. Later, Johnson filed a third party petition against the Edwardses which, as amended, asserted that the Edwardses' deed to Johnson "warranted the title" to tract B, and that the Edwardses were thus liable to Johnson for any damages assessed against him in favor of plaintiffs.

Plaintiffs, through discovery, acquired information that one Leonard Wells held a leasehold interest in Johnson's building. Consequently, plaintiffs moved to add Wells as a defendant. Wells and his wife, Eva, thereafter intervened, alleging that they had leased the building from Johnson "with option to purchase" and that they had made "substantial improvements thereon." Besides pleading several affirmative defenses to plaintiffs' claims, the Wellses filed a cross-claim against the Edwardses based on the warranty in the Edwardses' deed to Johnson, seeking damages from the Edwardses in the event plaintiffs prevailed against Johnson.

It is obvious, of course, that the Edwardses would not be liable to Johnson or the Wellses if plaintiffs prevailed against Johnson only on Count I of plaintiffs' petition, as the deed from the Edwardses to Johnson warranted title only to tract B, and Count I was based on encroachment onto tract A. The Edwardses would be liable to Johnson or the Wellses--if at all--only if plaintiffs prevailed against Johnson on Count II.

The Wellses also filed a cross-claim against Johnson, claiming that should plaintiffs prevail against Johnson, he would be liable to the Wellses for breach of a provision in the lease guaranteeing peaceable possession of the leased premises during the term thereof.

The Edwardses, answering Johnson's third party petition and the Wellses' cross-claim, pleaded, among other things, that the covenant in their 1962 deed to the Barnetts was not meant to be a restriction "running with the land," but merely an agreement between the parties to that deed.

When the cause was tried, the Wellses failed to appear. According to counsel for plaintiffs and counsel for Johnson, the Wellses' attorney had indicated earlier that they did not intend to participate in the trial.

Plaintiffs' evidence included a plat of the survey by Pratt showing the location of the boundary between tracts A and B at the site of the encroachment. This plat ("Exhibit 20") was the only proof of where that boundary lay. Exhibit 20 was received in evidence over Johnson's objection, as more fully appears infra.

The trial court entered judgment in favor of plaintiffs and against Johnson and the Wellses on Count I of plaintiffs' petition. Plaintiffs were awarded possession of that portion of tract A which, according to Exhibit 20, was encroached upon by the north side of Johnson's building. Plaintiffs were also awarded one dollar as nominal damages.

The trial court entered judgment in favor of Johnson and the Wellses, and against plaintiffs, on Count II of plaintiffs' petition, ruling that the covenant in the 1962 deed from the Edwardses to the Barnetts "is void and is not a covenant running with the land of defendant Johnson nor a charge or encumbrance thereon." Consistent with this ruling, the trial court found the issues in favor of the Edwardses and against Johnson on Johnson's third party petition, and in favor of the Edwardses on the Wellses' cross-claim against them.

Lastly, the trial court found for Johnson on the cross-claim against him by the Wellses, noting there had been no proof of the alleged lease on which the Wellses' claim was based.

Plaintiffs appeal (number 13,752) from that portion of the judgment adjudicating Count II of their petition against them. Johnson appeals (number 13,756) from that portion of the judgment adjudicating Count I of plaintiffs' petition against him.

* * *

Appeal number 13,756

We deal first with Johnson's appeal. His sole assignment of error is that the trial court should not have received Exhibit 20 in evidence, in that plaintiffs failed to prove that Pratt, in making his survey to establish the boundary between tracts A and B, began either (a) at an existent corner of the United States public land survey, as defined by § 60.115(1)-(2), RSMO SUPP.1979, OR (B)¹ at a lost corner of the United States public land survey, § 60.115(3), which had been reestablished in accordance with § 60.225. Johnson asserts, and plaintiffs concede, that evidence of a survey which is not definitely shown to have commenced from a corner established by the government or, if lost, reestablished in accordance with statutes, is of no probative force. Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971); Roberts v. Harms, 627 S.W.2d 924, 926 (Mo.App.1982); Probst v. Probst, 595 S.W.2d 289, 290-91 (Mo.App.1979); Cornelius v. Tubbesing, 593 S.W.2d 609, 610 (Mo.App.1980); Wells v. Elder, 544 S.W.2d 258, 259 (Mo.App.1976).

Johnson's assignment of error requires careful study of Pratt's testimony and Exhibit 20.

As we understand his explanation, Pratt began his survey at a "found stone," which he identified as the northeast corner of the northwest quarter of the southwest fractional quarter of a certain section, township and range. Although Pratt referred to this as a "center" section marker, we fail to see how it could be, as the center of a standard section is the common point occupied by the southeast corner of the northwest quarter, the southwest corner of the northeast quarter, the northwest corner of the southeast quarter and the northeast corner of the southwest quarter.

Be that as it may, there was no testimony by Pratt establishing that this found stone was a monument, § 60.115(4), placed during the original government survey, § 60.115(6). All Pratt could say about this was, "Well, of course, they set a bunch of stones on corners, in days gone by."

There was likewise no showing that Pratt had examined the original government survey to ascertain whether the location of the found stone was in fact the corner Pratt believed it to be.

Pratt did testify that he found two "Government Land Office monuments" (hereafter referred to as "GLO monuments") on the state line between Missouri and Arkansas. The state line, according to Exhibit 20, lies less than 200 feet south of the boundary separating the north side of tract B from the south side of tract A. According to Pratt, he tied his survey to the found stone and the two GLO monuments on the state line.

Pratt described one of the GLO monuments on the state line as "a round head bolt set in concrete," and said he found it an inch beneath the pavement of a road that "goes right along the state line there." The second GLO monument on the state line is shown on Exhibit 20 as a half inch iron pin some 2,619 feet west of the bolt. Exhibit 20 identifies both monuments on the state line as corners of quarters of fractional quarters of sections in...