Burke v. Colley

• Decision Date: 18 May 1973
• Docket Number: No. 9389,9389
• Parties: J. Paul BURKE and Mary C. Burke, his wife, Plaintiffs-Respondents, v. R. L. COLLEY and Lorene Colley, his wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 699

495 S.W.2d 699

J. Paul BURKE and Mary C. Burke, his wife, Plaintiffs-Respondents, v. R. L. COLLEY and Lorene Colley, his wife, Defendants-Appellants.

No. 9389.

Missouri Court of Appeals, Springfield District.

May 18, 1973.

James R. Hall, Doniphan, for plaintiffs-respondents.

Hyde, Purcell, Wilhoit & Edmundson, William Darmstaedter, II, Poplar Bluff, for defendants-appellants.

BILLINGS, Judge.

In this court-tried case title to real estate was quieted in plaintiffs and in a separate count plaintiffs had judgment against defendants for money damages for the conversion of gravel from the lands involved. We reverse and remand.

As in most cases involving boundary disputes, plaintiffs and defendants are neighbors with their respective farms being located in Ripley County. And it is the cool, clear and sparkling waters of many a float fisherman's fondest memory ¹--Current River--and its rise and fall over the years, which has given rise to the present controversy. Plaintiffs occupy lands west of the river and claim ownership of lands extending beyond the east bank, whereas defendants occupy lands east of the river, contend they own to the river, and that plaintiffs' eastermost boundary is the west bank of the river.

Current River begins its 250 mile southerly sojourn in Texas County, Missouri, and empties into Black River in Randolph County, Arkansas. Webster's New Geographical Dictionary (1972), page 304. As it traverses the Missouri Ozarks and winds its way toward the Land of Opportunity it passes through the County of Ripley where a sign located on the courthouse lawn in Doniphan proudly proclaims to the world: 'Ripley County--Where History Is Preserved and Nature Stands Revealed.' ²

A few miles south of Doniphan the Current bisects Section 25 and in the area of the parties' farms it runs southwest, then turns eastwardly, then northeasterly, back east, and then resumes a southerly direction. Thus, as variously described by witnesses, the river forms a 'loop', a 'bend', or possibly more appropriate from an ichthyological standpoint, 'the shape of a fishhook'.

In September of 1963 plaintiffs purchased Lots 6, 7 and 8 of the Southwest Quarter of Section 25 (together with other lands) from Mr. and mrs. Pierce. In connection with the sale the premises were viewed by the plaintiffs, accompanied by Mr. Pierce. When they arrived at the west bank of the river Mr. Pierce told plaintiffs that part of his property was located 'across the river'. He did not explain how much of the land was so located and plaintiffs did not ask him. At the time they observed a gravel dredging operation along the east bank of the river and were informed by Mr. Pierce the operation was that of defendants.

Following their purchase the plaintiffs continued to observe the removal of gravel from the east side of the river by defendants and were aware that defendants claimed an interest in the property where the gravel was being dredged and removed.

Plaintiffs acknowledged in their testimony that defendants had actual possession of the disputed lands 'across the river' from 1963 until the trial in May of 1972 and during this period continued to remove gravel and 'controlled' the disputed area 'openly and notoriously'.

Defendant Lorene Colley, prior to her marriage to defendant D. L. Colley, was a member of the Meriell family. The Meriell's settled on lands east of Current River sometime in the 1800's and since their lands were located near the bend of the river this area became known as 'Meriell's Bend'. A 73-year-old river guide preferred the more descriptive term 'Snaggy Bend' because of the number of 'snags' present--'a lot of people won't go through it.'

The defendants moved onto the Meriell lands 'east of the river' in 1939. Lorene testified that her father was in possession of the lands for forty or fifty years before 'we became heirs to it.' Her husband testified he 'had all of John Meriell's estate in my possession since 1942.' In October of 1957 the defendants obtained a quitclaim deed from various parties (presumably from the heirs of John Meriell) and among the lands quitclaimed were Lots 10, 12 and 13 'East of the Current River' Section 25 and Lot 16 'East of Current River' in Section 36.

There was evidence that defendants had been removing and selling gravel from along the east bank of the river for a number of years. A witness called by plaintiff testified he had been buying and hauling gravel from this area since 1957 and that defendants represented themselves to be the owners. The witness said he had been familiar with 'this property' all of his life (age 39) and during his lifetime the defendants claimed the property and on cross-examination testified as follows:

'Q. And would it be a fair statement to say that within your knowledge, that (defendants) have had continuous open, notorious and actual possession under claim of right to this land at least for thirty-nine years?

A. Yes, sir.'

Defendants offered other evidence that they had charged fishermen fees for fishing along the east bank of the river; that they had cut and sold timber from the area; parts of the area had been cleared by them and used for cattle pasture; and, some buildings had been erected along the east bank by them.

In their petition plaintiffs asked that the title to the lands conveyed to them in the Pierce deed be quieted in them and also sought damages for defendants' conversion of gravel over a six-year period. In addition to denying the allegations of plaintiffs' petition, the defendants claimed plaintiffs' lands were bounded on the east by Current River and that defendants were the owners of the lands lying east of the river by reason of adverse possession and accretion. Defendants did not seek a declaration that title be quieted in them.

In 1967 plaintiffs caused a survey of their property to be made by County Surveyor Vincent (deceased at time of trial). This survey and Vincent's field notes, recorded in the office of Recorder of Deeds (§ 60.150, RSMo., 1969, V.A.M.S.) were received in evidence without objection and showed plaintiffs' lands to be located West of Current River with the river serving as their eastern boundary.

In 1969 plaintiffs engaged the services of then County Surveyor, Hardy Martin, and W. H. Ice, New Madrid County Surveyor and a registered land surveyor, to make another survey. Martin provided Ice with Vincent's survey and field notes and in addition Ice related he used government field notes, a photostatic copy of an official government plat of the township, and aerial photographs (none of which were introduced in evidence) to prepare what was variously described as a survey, map, and plat, and received in evidence, over objection, as plaintiffs' exhibit three. Martin and Ice...