Carlisle v. Keeling, 47648
| Decision Date | 12 June 1961 |
| Docket Number | No. 47648,No. 2,47648,2 |
| Citation | 347 S.W.2d 191 |
| Parties | Ben F. CARLISLE and Grace Carlisle, Appellants, v. Charles W. KEELING, Respondent |
| Court | Missouri Supreme Court |
Albert Thomson, Robert W. Cook, Al Lebrecht, Kansas City, for appellants. Davis, Thomson, VanDyke, Fairchild & Walsh, Kansas City, of Counsel.
Thomas M. Sullivan, Downey, Abrams & Sullivan, Kansas City, for respondent.
Action between the owners of adjoining city lots to determine title to a strip 15 feet in width along the common boundary of their properties. Plaintiffs claim title by adverse possession. The trial court found against such claim, and awarded judgment to the defendant, the record owner, from which judgment plaintiffs have appealed.
The property in dispute is the north 15 feet of Lot 25, Block 1, King and Bouton's Addition in Kansas City, Missouri. Defendant is the record owner of all of said Lot 25 (and one-half of adjacent Lot 24, which is not here in controversy). Lot 25 lies immediately south of plaintiffs' premises, to wit, Lot 26 (and the adjacent south 3 feet of Lot 27, lying to the north of Lot 26). All the lots in the block are 26 feet wide and 120 feet deep, as shown by the recorded plat. Those of plaintiffs and defendant front on Washington (a north and south street), and are bounded on the east by an alley running north from 17th Street. The neighborhood is decadent and run down. The dwellings are quite small in size--'tiny,' as one witness expressed it. Defendant's propety is unimproved, vacant ground, whereas plaintiffs reside in the dwelling located on their Lot 26. A survey made at the instance of defendant disclosed that plaintiffs' residence was 'somewhere between a foot and a half and two feet' north of the north line of the strip in question. There is a door on the lower or semibasement level at the south side of plaintiffs' residence which gave access to the disputed strip simply by crossing over the smaller foot and a half or two foot strip mentioned above. The elevation of the western portion of the disputed strip is lower than the rest of the lot, and lower than the street level. There is either a low retaining wall or the remnants of a masonry foundation which extends eastward for an undisclosed distance from the front or west line of the lot. It is with respect to the area between this retaining wall or foundation and plaintiffs' residence to the north thereof (sometimes referred to by plaintiffs' witness as a side yard) that most of the proof was directed.
Plaintiffs acquired an undivided one-half interest in the premises known as 1655 Washington Street (being all of Lot 26, and 3 feet of Lot 27 above mentioned) by warranty deed dated February 11, 1946, the coowners being Mrs. Carlisle's son, Lawrence V. Hall and his wife. The latter lived with plaintiffs at this Washington Street address from February 1946 until August 1947, at which time they moved to Texas and conveyed their one-half interest to plaintiffs by warranty deed. They returned in 1950, again moved in with plaintiffs, and lived with them until 1954.
This controversy arose in 1957 when defendant, through a real estate agency, sought to purchase the property owned by plaintiffs together with the property immediately to the south thereof, including the strip in question (which he did later acquire). Defendant owns an apartment building located on the west side of Broadway, the next street east of Washington. Plaintiffs' property and the adjoining lot on the south are adjacent and to the rear of this apartment building, and defendant desired to purchase those properties for use as a parking lot for the tenants in his apartment building. The negotiations were handled by Mr. Sewell W. Mudge, Vice President of John A. Moore & Co., who contacted plaintiff, Ben Carlisle, on two or three occasions early in 1957 in attempting (unsuccessfully) to purchase plaintiffs' property. He did, however, negotiate a sale to defendant of the property to the south of plaintiffs', the owner of which was a nonresident, Mr. Gustafson, who lived in the State of Washington. The deed from Gustafson to defendant was dated June 19, 1957, and it conveyed the north half of Lot 24, and all of Lot 25.
Plaintiffs' evidence was to this effect: That a former tenant (not owner) pointed out the retaining wall to the husband, Ben Carlisle, as being the south boundary of the property (inferentially at the time of purchase in February 1946), thus including the strip in question; that (at some unspecified time) two trees thereon had died out, and Mrs. Carlisle replaced them by planting two others in their stead, which replacements, as shown by photographs, appear to be in very close proximity to the north side of the retaining wall; that Ben customarily parked his car in the disputed area; that old wooden clothesline poles were on the strip when plaintiffs moved in, which at some unspecified later time they removed, and replaced with new metal poles--these (two in number) appear to set somewhat to the south of the center of the strip, one being at the west end and the other aligned perhaps with the east end of the house (whether set in concrete or merely forced into the ground does not appear); that here the women hung out their wash to dry, and the same area, sometimes referred to as a side yard, was also used, particularly in the summertime, as a play area for the children, and where picnics were held; that Mrs. Carlisle planted flowers along the retaining wall, and that plaintiffs kept the grass mowed. There was evidence to the effect that at the time plaintiffs moved into the house there were two small structures which were partly on the strip in question--one was a coal shed 'directly back of the house and to the south,' which plaintiffs tore down without asking anybody's permission; the other building was 'considered a tool shed.' It was removed, with plaintiffs' consent, by 'a lady that lived in the building, and claimed it was her husband's, and she wanted it, so we let her take it, or I did.' The basis of the woman's claim was not disclosed.
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