City of Marshfield v. Haggard, 7646

• Decision Date: 20 July 1957
• Docket Number: No. 7646,7646
• Citation: 304 S.W.2d 672
• Parties: CITY OF MARSHFIELD, Plaintiff-Respondent, v. Beulah HAGGARD, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 672

304 S.W.2d 672

CITY OF MARSHFIELD, Plaintiff-Respondent, v. Beulah HAGGARD, Defendant-Appellant.

No. 7646.

Springfield Court of Appeals, Missouri.

July 20, 1957.

James H Keet, Springfield, Homer D. Wampler, Jr., Springfield, and John Hosmer, Marshfield, of counsel, for defendant-appellant.

Roy C. Miller, Marshfield, for plaintiff-respondent.

RUARK, Judge.

This is a boundary line dispute in which the plaintiff-respondent city claims that the improvements of the defendant-appellant, who is owner of Block 5, Kentucky Row, Second Addition to Marshfield, intrude across and south of the north line of Burford Street. The city relies upon two surveys (Rader and Neuhart) which put the north line of the street farther north than it is put by the survey (of Reed) upon which the defendant relies. The contention of the city is that the Reed survey is inaccurate in its northern call for distance. The claims of the defendant can be summarized as a contention that neither of the city's surveys is shown to have a correct commencing point. The ultimate question is the validity and accuracy of these surveys, but our first problem is to locate the Second Addition to Marshfield in reference to some established point.

In the 1850's the original town of Marshfield was laid out, and shortly thereafter the First, Second and Third Additions were platted. The only instruments which show these are two plats, one showing the original town with Third Addition lying on its right, and the other setting forth First and Second Additions, with Second Addition on the right. These plats are old, faded, worn, and tattered, and portions of the 'descriptions and explanations' are unreadable, but from what we can distinguish we can say that the original town was laid off in a rectangle. Its north line centered upon a point designated as the northeast corner of the Northwest Quarter of the Northwest Quarter, Section 10, and extended 60 rods in each direction along the section line. The central point above mentioned is designated on the plat as 'Pt. of U. Survey.' Three hundred seventy-six feet south and 45 feet east of this 'Pt. of U. Survey' is fixed an arbitrary point, the center of a public square which is 420 feet on each side. Immediately east of the original town was laid Third Addition with its north line extending 20 rods east on the section line, thus, when taken with the east 60 rods of the original town, filling out the 80-rod 1,320-foot distance to reach the next quarter-quarter corner of a normal section. Third Addition commences where original town leaves off, and the same named streets, of the same width, run through both tracts on parallel extensions, and the block lines likewise conform in position and measurement.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The parties assume that the plat showing Second Addition (wherein is located the property involved) does not definitely locate itself in reference to any section or subdivision corner, and this is the origin of some of our trouble. The plat simply states that it is 'laid on the Southeast Quarter of the Southwest Quarter of Section Three.' We shall follow with the assumption of the parties, although we do not find it necessary to hold that the location made by the above designation would not be sufficient to locate the south line of the addition on paper if that were the only available means of finding it.

The plat of First and Second Additions, at its extreme bottom (south) edge, shows a row of numbered blocks which are located in reference to the public square and which comprise the north tier of blocks, with corresponding numbers shown in the plat of original town and Third Addition. Through these lots, and through both subdivisions, the same named streets extend in the same width and corresponding parallels. In other words, the two plats fit together and are tied by reference to the same designated blocks and streets, which are the connecting links. The result is a composite picture which shows the location of the 'point of survey' on the south line of Second Addition and on the north line of Block 4 of original town, 45 feet west of the center of Marshall Avenue, which extends from the center of the public square in original town along the west side of Third Addition. (See opposite page.)

The plat so laid out on paper is prima facie evidence of the accurate location of the corners, boundaries, streets, and lots within the platted area. Patton on Titles, Sec. 68, p. 255; Dolphin v. Klann, 246 Mo. 477, 151 S.W. 956, 957.

In 1883 one Alexander Smith, county surveyor, made a survey for the purpose of marking out the then Marshfield city limits in a square mile, extending one-half mile in each direction from the center of the courthouse. This survey recognizes and commences with the 'point of survey' shown on the plat of original town and located 376 feet north and 45 feet west of the courthouse. The plat filed with this survey likewise locates this point as being at the quarter-quarter section corner.

In 1937 county surveyor Gilbert Reed made a survey of property located in the block north of the defendant's property. In so doing he commenced at the center of the courthouse (in original town), ran east to intersection of Washington and Pitts streets, thence north 1,300 feet to his beginning point. Defendant, by measuring back southward the required distance shown by the plat, arrives at a point which she claims should be her south boundary. The two surveyors who were witnesses testified that the Reed survey is simply erroneous in the call for distance north as Reed wrote it on his survey notes; that the actual distance of this north course should be 1,326 feet. The plats in evidence show that this distance is, on paper, actually 1,326 feet. There was evidence that the addition is square. There is no evidence of any shortage or gain in distance between the plat as put on paper and as followed on the ground, and the Reed survey does not attempt to make any apportionment of gain or loss, as would have been required had such been true. ¹ This being true, we must conclude that the Reed survey is in error.

But defendant is in possession, and plaintiff has the ultimate burden of proof. Consequently it still remains to be seen whether plaintiff's surveys are acceptable.

In 1953 county surveyor E. Rader ran a survey to locate this disputed boundary. His plat and survey notes show that he began at the northwest corner of Section 10 at 'rock in place,' and ran east 1,310.10 feet to the northeast corner of the Northwest Quarter of the Northwest Quarter, where he found 'rock (with proper mark) in place.' His plat shows this rock to be 45 feet west and 376 feet north of the center of the public square (the same location designated as 'Pt. of U. Survey' in the plat of original town, and the same as that designated as 'point of survey' in the Smith survey of 1883). He then ran east 1,323 feet, the distance required by the plat of Second Addition, to a point 20 feet south of Block 1 of Second Addition. (The original plat shows a 20-feet alley running along the south line of Second Addition and immediately north of original town.) There he 'found iron bar in place.' Thence he ran 720 feet north (the plat distance) to the northeast corner of Block 4 (which is also the south line of Burford Street), where he 'found iron bar in place.' Thus he determined his beginning point for his survey of the immediate area and from such survey found the north line of Burford Street, which he staked.

By stipulation of the parties, the court appointed one Neuhart to make an independent survey to locate the boundary line. The notes on his survey show the courses and distances from the intersection of Burford and Pitts streets and thence around the rectangle which comprises the disputed area. The notes do not show his course and distances in arriving at his beginning point at Pitts and Burford. The plat accompanying the Neuhart survey gives the same distances and monuments as are shown on the Rader survey. On such plat is designated the '1/4 Sec. Stone,' which is at the 'point of survey' shown on the original plat, thence a drawn line 1,323 feet east to 'iron pin,' thence a drawn line 720 feet north to an iron pin at the south line of Burford Street.

Appellant's principal objection to both the Rader and Neuhart surveys is that neither of them started from a government corner. We do not think that such was necessary in this case. It is true that, in surveying and locating a subdivision of a section, reference must be had to some established government corner or a corner re-established in accordance with the statutes (Sections 60.290, 60.300 RSMo 1949, V.A.M.S.. ² This is usually necessary in order to show the location of the subdivision of the section in relation to the section as a whole and in respect to its other portions, or to show the location of the section in reference to other sections. But in this case the parties are in dispute in regard to their relative locations within the same plat. Their quarrel would be the same no matter where in the section they were located. The city took the street as dedicated. The defendant took title to Block 5, Kentucky Row, Second Addition, by deed. In other words, both took under the plat. The acceptance of these interests 'estops' them from questioning the relative locations as they were platted, and they cannot dispute the description and location of their property in reference to each other as platted and laid out. Land Titles and Land Law, McDermott's Deskbook, Sec. 3.21-I, p. 62; City of Pacific v. Ryan, 325 Mo. 373, 28 S.W.2d 652, 655; City of Laddonia v. Day, 265 Mo. 383, 178 S.W. 741; see Mothershead v. Milfeld, Mo., 236 S.W.2d 343, 345. This being a dispute over the position of their properties in relation to each other within the platted addition, the location of the plat within the government section is...