Dolde v. Vodicka

• Decision Date: 31 October 1871
• Citation: 49 Mo. 98
• Parties: MATTHEW DOLDE, Respondent, v. VENZEL VODICKA, Appellant.
• Court: Missouri Supreme Court

49 Mo. 98

MATTHEW DOLDE, Respondent,

v.VENZEL VODICKA, Appellant.

Supreme Court of Missouri.

October Term, 1871.

Appeal from St. Louis Circuit Court.

Geo. P. Strong, for appellant.

E. C. Kehr, for respondent.

BLISS, Judge, delivered the opinion of the court.

This is an action of ejectment to recover a strip of eight and a half feet, alleged to be a part of lot No. 11, in block 2, of the Arsenal addition to the city of St. Louis, and the true location of the division line between lots 11 and 12 is the matter in dispute. The east half of said block 2 fronts upon Carondelet avenue on the east, and consists of seventeen lots, commencing with No. 1, on the corner of Gate street and the avenue, and running north to Arsenal street. Gate street runs at right angles with the avenue, and Arsenal street deflects southwardly from it, making the northeast corner of lot 17 an acute angle. Both plaintiff and defendant purchased their lots of one Joseph Ledue, and took possession as they now occupy, both parties, as well as their grantor, supposing the line now claimed by defendant to be the true one. Both deeds from Ledue describe the lots respectively by their numbers, “according to the plat of the addition on file,” etc. But in surveying the block there is found to be a deficiency north, of eight and a half feet, the actual measurement falling so far short of the distance called for by the plat or map. The evidence makes it quite probable, if not certain, that the mistake is in the map, and in entering upon it the front width of lot 17. All the lots except that are 25 feet wide, and that is entered as having a front of 32 512 feet, which is claimed to be some eight and a half feet too much. In commencing upon Arsenal street and running south, giving each lot the width called for, the division line between the parties is found to be where both have hitherto considered it, and to which both have built and occupied; to commence upon Gate street, however, and run north, giving the lots their record width, the division line is wrong, and should be the distance north claimed by the plaintiff. Conceding that the mistake was in the map, and that it arose from the supposed mistake in entering the front width of lot 17, the other facts are undisputed. All the lots from 9 to 17 were taken possession of according to the width named in the plan. The whole front of lot 17 had been covered with a brick building for more than twenty years before the trial. Lot 16 had also been built upon. Lot 13 was owned by defendant, had been inclosed, and ever since 1856 a frame house had stood upon it, and up to its south line. In 1863 defendant bought lot 12, and covered its whole front with a brick building, and soon after the plaintiff purchased lot 11, upon which he erected a building, joining that of the defendant. He also owns lots 9 and 10, and occupies the whole of those according to the distances laid down from Arsenal street. So we find that all the owners of lots, in the north part at least, if not throughout the block, including both the parties to this suit, have received their deeds according to this plan, measuring from the north, have occupied and improved their lots, holding according to these measurements, and some of them for a period that would give them a title under the statute of limitations. And, further, it appears that when these litigants purchased lots 11 and 12 they were surveyed and staked off by their vendor, precisely as they have ever since been occupied, so that possession was delivered as was contemplated by their respective deeds. Mr. Cozzens, a surveyor of great experience, also testifies that in running out these lots he found surveyor's marks upon the curb-stone opposite their boundary, indicating the location of their dividing lines, precisely as occupied by the owners.

It is undisputed that where no other description is given of lands sold than by number of the lot in a survey of a tract of land or the plan of a town or an addition to the same, the authentic map of such survey is as much a part of the deed as though set out in it. The plan of this addition was duly certified and recorded under the statute, and everything in it may be treated as in the deeds to both the parties.

This is not the case, which so commonly occurs, of a discrepancy between the calls of the deed in course and distance, and the course and distance of the line as actually run; nor does any mistake appear in the original survey of the block, for it is assumed that...