Curd v. Reaban

• Citation: 232 S.W.2d 389
• Decision Date: 10 July 1950
• Docket Number: No. 2,No. 41672,41672,2
• Parties: CURD et ux. v. REABAN et al
• Court: Missouri Supreme Court

Page 389

232 S.W.2d 389

CURD et ux. v. REABAN et al.

No. 41672.

Supreme Court of Missouri, Division No. 2.

July 10, 1950.

Motion of Defendants-Appellants for Rehearing or to Transfer

to Court en Banc Overruled Sept. 11, 1950.

Hall & Reaban, Dale Reaban, and Roy H. Bergmann, all of St. Louis, for appellants.

Jackson F. Adams, St. Louis, for respondents-appellants Logan W. Curd and others.

BARRETT, Commissioner.

This action in two counts was instituted on the 23rd day of June 1947. The purpose of the first count is to quiet the title to a part of a lot in Westmoor Park Subdivision No. 2 in St. Louis County and the second count is in ejectment. The controversy arose in these facts: Logan W. and Gladys V. Curd purchased Lot 23 in Block 12 of the subdivision in May 1946 for $3,600. Fred W. E. and Myrtle E. Best purchased Lot 24 in 1937 and built a house and garage and a concrete driveway on the lot. On March 18, 1938 they sold the property to John E. and Ethel J. Reaban. In April 1947 Mr. Curd had his property surveyed and it was discovered, for the first time, that the garage and driveway encroached on his lot. At the widest point the garage encroaches two feet eight and three-eighths inches and at its narrowest point one foot one and one-half inches. The lots are irregularly shaped and the concrete driveway encroaches Lot 23 from zero to two feet nine and one-eighth inches at the widest point. When the survey revealed the encroachments the Curds instituted this action. The Bests and the Reabans claim title by adverse possession. The two counts were separately tried, the first count to quiet title in September 1948 and the second count in ejectment in February 1949. The trial court found for the Curds on both counts but failed to make an award of demages. The Reabans and the Bests appeal from the judgments against them and the Curds likewise appeal assigning as error the failure of the trial court to make them an award of damages.

Upon the Bests' and the Reabans' appeal the principal error briefed and argued is that the Curds' petition and the judgments entered upon it are void because they fail to sufficiently describe the encroachment. It is said that the petition as to the first count to quiet title failed to set out or describe the encroachment and that the plaintiffs' principal witness could not describe it and, therefore, the petition failed to state a cause of action and the judgment entered upon that count of the petition is void. The petition described the Curds' property as Lot 23 and the defendants' property as Lot 24. It alleged that 'the property of the plaintiffs forms the western boundary line of the property of defendants.' The petition described the improvements erected by the Bests on Lot 24 and alleged that 'in erecting their driveway and garage they encroached upon the above described property of plaintiffs to the extent of three (3) feet, more or less, as more definitely described in plat hereto attached and made a part of this petition, * * *.' The pleaded plat, made by a qualified engineer-surveyor, was introduced in evidence upon the trial of count one. The plat accurately measures and describes the boundaries of the Curds' lot and the encroachment of the garage and the driveway but it is not a metes and bounds description of the encroaching areas. In short it is not such a description as would be employed in a conveyance.

It was not a description, however, comparable to the one involved in Bricken v. Cross, 140 Mo. 166, 41 S.W. 735, 736, an ejectment suit. There the land sued for was not only incorrectly described, the given courses, the court said, constituted an impossibility--that is the description did not circumscribe an area of land, and so the petition failed to state a cause of action. As to the judgment the court said: 'While it may be that from the description of the land in the judgment an officer charged with the execution of a writ of possession might be able to put plaintiff in possession of the land therein described, certain it is that it cannot be platted as thus described, because in so doing it must have for its base the description given in the petition, which is no foundation at all.' Likewise the description here is not comparable to the attempted description of the abandoned railroad right of way in Broderick v. Tyer, 239 Mo.App. 118, 187 S.W.2d 476, 478. There the court pointed out the deficiencies in the description as set forth in the petition and added, 'There is no evidence that the abandoned lands now have any defined boundaries, such as fences, or that there is present any markers, or physical characteristics, by which they might be located.' So too the case is not comparable to Tillman v. Hutcherson, 348 Mo. 473, 154 S.W.2d 104, 110, a suit to quiet title in which the dispute was as to the boundary line. There the court said: 'Since the location of the east boundary line of the SE 1/4 of the quarter section was questioned and not proven; and this description did not locate the new fence and the old fence with reference to each other, or to any Government survey or natural monuments, the judgment was too vague to locate the land in dispute. If the old fence was not removed after the new one was built, one could go on the ground and find it. But even so, if it is not tied in with recognized monuments, the rights of the parties will still rest partly in parol; and unless the land in dispute can be located from the written description in the judgment, the law suit has been in vain and settles nothing except that respondent is entitled to the land wherever it is. It is universally held that judgments should describe with reasonable certainty the land adjudicated therein, both in ejectment and actions to determine title. If there is any difference, it seems the land description should be more definite in the latter, since we are coming to regard ejectment as a possessory action only.'

Here, as we have indicated, the plat accurately measures the Curds' property and the encroachments. In addition, when the engineer-surveyor testified he said: 'A metes and bounds description can be made from the data that is on here.' He said that, up to that point, he had not given the court a metes and bounds description 'but I gave him sufficient data from which one could be written.' At the conclusion of the trial on the first count the court's judgment found 'that plaintiffs are entitled to a decree as prayed on Count...