Brotherton v. City of Jackson

• Decision Date: 19 January 1965
• Docket Number: No. 31581,31581
• Citation: 385 S.W.2d 836
• Parties: Nola E. BROTHERTON, (Plaintiff) Respondent, v. CITY OF JACKSON, Missouri, and Louis Loos and Robert Hoffmeister, d/b/a Loos and Hoffmeister Construction Company, (Defendants) Appellants.
• Court: Missouri Court of Appeals

Page 836

385 S.W.2d 836

Nola E. BROTHERTON, (Plaintiff) Respondent, v. CITY OF JACKSON, Missouri, and Louis Loos and Robert Hoffmeister, d/b/a Loos and Hoffmeister Construction Company, (Defendants) Appellants.

No. 31581.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1965.

Buerkle & Lowes Albert C. Lowes, Paul Mueller, City Atty., Jackson, for appellants.

No counsel for respondent.

RUDDY, Presiding Judge.

This is an action by plaintiff for an injunction and for damages for an alleged trespass. The principal issue in the case is the determination of the location of the bundary line btween plaintiff's property and a public street of the City of Jackson, Cape Girardeau County, Missouri. From a decree and judgment finding a boundary line and enjoining and prohibiting defendants from entering upon property north of the boundary line found by the court defendants have appealed.

The petition is in three counts. It is alleged by plaintiff in the combined counts that she is the owner of a tract of land in the City of Jackson, County of Cape Girardeau, State of Missouri, as more particularly described in the petition; that in the alternative to the description contained in the petition she states that she owns all property between her house and the asphalt roadbed of a street in Jackson, Missouri, known as the Old Cape-Jackson Road; that the defendants, Louis Loos and Robert Hoffmeister, doing business as Loos and Hoffmeister Construction Company, have a contract with the defendant City of Jackson to widen said Old Cape-Jackson Road and to resurface said road and install curbings along the edges thereof; that the defendants and each of them through their agents, servants and employees 'have trespassed on said property and threatened to continue trespassing upon said property, and further threaten to enter upon said land without the content of the plaintiff and do irrepairable damage and injury to the plaintiff'; that no proceedings have been taken by the defendant City of Jackson as required by law for the ascertainment and the payment of damages to the plaintiff; that the house located on the described property was constructed to conform to the grade of said street and that the grade of said street has heretofore long since been established and used and that the defendant City of Jackson without lawful authority is lowering the actual grade of the Old Cape-Jackson Road 'about three (3) feet and will greatly damage plaintiff's property'; that she (plaintiff) has not consented to the change of grade, nor have the damages which she has sustained been paid, nor has the defendant, City of Jackson, taken or begun any proceedings to have such damages ascertained and determined; that the defendants, Loos and Hoffmeister, have begun and are proceeding with the work of changing the grade of said street and that said action will greatly depreciate and damage said property.

It is further alleged by plaintiff in said petition that during the months of September and October 1962, defendants have trespassed on the property owned by the plaintiff and have damaged lawns, shrubs, trees and flowers and the foundation under plaintiff's house located on the above described property and as a result she has sustained severe mental anguish and pain; that as a result of these trespasses upon her property and injuries to her person she has been damaged in the amount of $10,000.

In the combined prayers contained in the petition she prays that defendants be enjoined and restrained from entering upon said land and from changing the grade of said street and for judgment against said defendants in the amount of $10,000.

On the same day the petition was filed the court entered a restraining order directing 'that the defendants be absolutely restrained and prohibited from entering upon the premises described in the petition, * * *.'

Defendant, City of Jackson, in its answer denied the pertinent allegations of plaintiff's petition and alleged that the public roadway referred to in plaintiff's petition has existed for more than 100 years and that its existence was established in the case of State ex rel. Hines v. Cape Girardeau and Jackson Gravel Road Company, 207 Mo. 85, 105 S.W. 761, and definitely decided therein that the Old Cape-Jackson Road, which runs along the south of the plaintiff's described land, was a public road and was of 50 foot width. It further alleged that said right of way is definitely established by a plat on file in the office of the Recorder of Deeds, County of Cape Girardeau, Missouri, being filed in Plat Book 1 at page 32, wherein there is shown a center line, and the right of way purports to be 25 feet to each side thereof. It was further alleged that the proposed construction is well within the confines of the said 50 foot right of way and that no one can claim by adverse use any lands against the public, including the City of Jackson, Missouri. It is admitted in said answer that defendants Louis Loos and Robert Hoffmeister have a contract to widen said Old Cape-Jackson Road and to resurface said road and install curbing along the edges thereof. It denies that the grade of said roadway is being changed.

In a separate answer of Louis Loos and Robert W. Hoffmeistwer they deny the pertinent allegations of plaintiff's petition and admit that they have a contract with the defendant, City of Jackson, Missouri, to widen said Old Cape-Jackson Road and to resurface said road and install the curbing along the edges thereof.

In the year 1851 the Cape Girardeau McAdamized and Plank Road Company constructed a macadamized or plank road and prior to said construction caused a line for a road from the City of Cape Girardeau in the County of Cape Girandeau, Missouri, to the Town of Jackson, Missouri, in said county, to be surveyed and marked out and in order to carry out its purpose the said company procured from certain owners of land a deed whereby the said grantors conveyed a permanent right of way through and over their respective lots and lands which were described in the deed executed by said landowners on the 25th day of September, 1851. By virtue of this deed a strip of ground 50 feet wide, along the line of said road, from the City of Cape Girardeau to the Town of Jackson was conveyed for a right of way. On November 6, 1907, in the case of State ex rel. Hines v. Cape Girardeau and Jackson Gravel Road Company, supra, the Supreme Court en Banc determined that this roadway was 50 feet in width and confirmed its establishment. This road has been referred to throughout the pleadings and the evidence herein as the Old Cape-Jackson Road. The road was a toll road and the toll house where the toll payments were made is the residence now located on the property claimed by the plaintiff. It seems the road remained a toll road until some time between 1905 and 1910 when the toll gate was taken down. Witnesses said that the toll was paid through the bay window of the house located on plaintiff's property and that the toll gate was located on the road at the house. At some time this 50 foot roadway was improved by paving it with a hard surface referred to by the witnesses as 'blacktop.' The record does not disclose the width of the blacktop pavement except that one witness testified that the asphalt pavement is about 20 feet from the center line, when describing the west side of the road adjoining plaintiff's property. In describing the present condition of this blacktop road on the west side he said that he had to dig back in the gravel and dirt a little bit to uncover the edge of the asphalt, because grass had grown over the asphalt pavement. It was agreed by the parties that the City of Jackson has been maintaining the portion of the road which is presently blacktop.

As stated that principal issue in this case was the determination of the location of the boundary line between plaintiff's property and the Old Cape-Jackson Road. Plaintiff and her two sons were the only witnesses in plaintiff's case and their testimony is scarcely sufficient to establish the location of the boundary line in issue.

Plaintiff's evidence shows that the property in question was purchased by her and her husband who is now deceased. They bought the property from Mr. J. G. Kies in 1946. Plaintiff failed to introduce in evidence the deed under which she acquired title to the property. The toll house heretofore mentioned was on the property and is a two story house containing seven rooms, with a bay window that extended out toward the Old Cape-Jackson Road. Prior to the grading of the road there was a lawn between the house and the blacktop road. Plaintiff said she had a row of flowers set near the house and a grass lawn between the flowers and the blacktop road. The distance between the edge of the house and the edge of the blacktop road was approximately 6 1/2 to 7 feet. One of plaintiff's witnesses described a two foot drop in the slope of the land between the house and the road. Plaintiff's sons mowed the grass between the house and the blacktop road from 1946, when plaintiff acquired the property, until the City of Jackson graded the road up to plaintiff's house. Plaintiff said that the City of Jackson never mowed any of the grass at any time on her side of the road. At one point in her testimony plaintiff claimed that all of the property up to the blacktop road was hers, but at a subsequent time in her testimony she admitted that she does not claim any land except that which is described in her deed, excluding two tracts that she sold, one on each side of her present tract. She thought her property ran up to the blacktop because she was told so by her grantor, Mr. Kies. She said she paid taxes on the land that was described in her deed and that she did not intend to claim 'somebody else's land.' As stated, two tracts of land were sold from the original tract acquired by the plaintiff. These tracts of land were sold to plaintiff's sons and at...