Carroz v. Kaminiski

• Decision Date: 14 June 1971
• Docket Number: No. 55519,55519
• Citation: Carroz v. Kaminiski, 467 S.W.2d 871 (Mo. 1971)
• Parties: Clarence CARROZ and Belva Carroz, Plaintiffs-Respondents, v. Eugene M. KAMINISKI and Marcella E. Kaminiski, Defendants-Appellants.
• Court: Missouri Supreme Court

Page 871

467 S.W.2d 871

Clarence CARROZ and Belva Carroz, Plaintiffs-Respondents, v.Eugene M. KAMINISKI and Marcella E. Kaminiski, Defendants-Appellants.

No. 55519.

Supreme Court of Missouri, En Banc.

June 14, 1971.

Max Oliver, Montgomery City, for respondents.

McQuie & Deiter, Montgomery City, for appellants.

HOLMAN, Judge.

This case, recently reassigned to the writer, is a quite title action involving a tract of 15.40 acres alleged to be owned by plaintiffs.Defendants alleged that they were the owners of a tract of 24.10 acres adjoining plaintiffs' land on the north.In their answer they did not claim title to any of plaintiffs' land except to the extent that the land described in plaintiffs' petition might overlap their described premises.A trial before the court resulted in a judgment for plaintiffs quieting title to the land described in their petition.Defendants appealed.We have appellate jurisdiction because the judgment adjudicated title.Our jurisdiction remains even though we are of the opinion, as will hereinafter more fully appear, that there was no justiciable title controversy for decision between the parties.

The only witness in the case was William Palmer, a Registered Land Surveyor.He testified that he made a survey of plaintiffs' property in 1965.A plat of that survey was admitted in evidence.It shows that plaintiffs' property is described as

'A parcel of land lying in the North part of Fractional LotNo. 2, in Section 7, Township 48 North, Range 3 West, in Montgomery County, Missouri, and more particularly described as follows: Commencing at an existing Iron Bar at the Southeast Corner of the Northeast Quarter of the Northeast Quarter of Section 1, Township 48 N., Range 4 West; thence South along the Section and Range Line, a distance of 4,260.7 feet, to an Iron Pipe and Pipe (pile) of Stones at the Northwest Corner of Section 7, Township 48 North, Range 3 West, the point of beginning of this description;

'Thence continuing along last described course, a distance of 813.0 feet, to an Iron Pipe and Pipe (pile) of Stones; thence N89 04 E, a distance of 783.1 feet, to an Iron Pipe and Pile of Stones; thence NO 38 E, a distance of 813.1 feet, to an Iron Pipe and Pipe (pile) of Stones; thence S89 04 W, and along the North Line of aforesaid Section 7, a distance of 792.0 feet, to the point of beginning, containing in all 15.40 acres, more or less.'

It was stipulated that the deeds conveying the property to plaintiffs described the tract as '14.71 acres, the North Part of Lot 2 of the Northwest Fractional Quarter of Section 7, Township 48 North, Range3 West.'The description of defendants' record title was stipulated to be 'The South Half of Lot 2 of the Southwest Quarter of Section 6, Township 48 North, Range3 West.'

It definitely appears from the pleadings, evidence, and argument that the land plaintiffs claim is located in Section 7 and that they are not claiming any land in Section 6; that the land defendants claim is all located in Section 6 and they are claiming no land in Section 7; and that the boundary line between the tracts of plaintiffs and defendants is the section line between Sections 6and7.

In our consideration of the questions presented we note that neither side claims any title by reason of adverse possession and, in fact, there is no evidence as to who is in possession of any of the property.There is no explanation as to how the 14.71 acres conveyed to plaintiffs became 15.40 acres at the time of the survey.We also observe that the surveyor testified that he'surveyed on around Mr. Carroz' property south of the section line' but he did not say that he followed the description in the deed or where he obtained a description of plaintiffs' tract.We assume that the iron pipes set to outline...