Dolphin v. Klann

• Decision Date: 13 November 1912
• Citation: 246 Mo. 477,151 S.W. 956
• Parties: DOLPHIN v. KLANN.
• Court: Missouri Supreme Court

151 S.W. 956

246 Mo. 477

DOLPHIN v. KLANN.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

Rehearing Denied December 10, 1912.

1. APPEAL AND ERROR (§ 1010) — FINDINGS — CONCLUSIVENESS.

A finding by the court, rendered without the giving of any declarations of law, will not be disturbed where there is any evidence to support it.

2. BOUNDARIES (§ 33) — PRESUMPTIONS — PLATS.

Under Rev. St. 1909, § 10290, requiring one laying out an addition to cause to be made an accurate plat particularly describing lots by numbers and their precise length and width, the law presumes that an accurate survey and marking on the ground formed the basis for a plat, so that the lots may be identified.

3. BOUNDARIES (§ 33) — PLATS — SURVEYS.

A plat of an addition comprising land bordering on a railroad right of way showed that the course of the railroad was not straight. The lengths of the lines running east and west as boundaries of the lots were marked on the plat. The lots bordering on the railroad were irregular in shape, and the lengths of their boundaries were marked accordingly. An old fence was placed in accordance with courses and distances called for. Held to justify a finding that a survey was actually made before the making of the plat, and a surveyor seeking to establish different lines must show good grounds therefor.

4. BOUNDARIES (§ 3) — MONUMENTS — CALLS FOR DISTANCES.

An unmarked line is not a natural or artificial monument, and does not, when called for in a deed, overcome a call for distance; but the latter will prevail.

5. BOUNDARIES (§ 3) — SURVEYS — CALLS FOR DISTANCES.

Where a surveyor was not the county surveyor when he made a resurvey of a platted addition, and he did not give any data from which he made the survey, such as his starting points, the survey did not overcome the calls for distances in the plat.

6. BOUNDARIES (§ 55) — ILLEGAL SURVEYS.

A survey which violates the act of Congress requiring that, in subdividing fractional sections on the west side of a township, the surplus over 40 chains in width shall go to the west side of the section, is illegal.

7. EJECTMENT (§ 86) — POSSESSION OF DEFENDANT — TITLE OF PLAINTIFF.

Where, in ejectment, defendant was in possession claiming under a plat of an addition as actually laid out on the ground, plaintiff could not recover except by affirmatively showing a better right.

8. BOUNDARIES (§ 53) — PRESUMPTIONS — SURVEYS.

Where a survey is illegal in a matter which the court knows about, it will not presume that it is correct in those particulars as to which it is not informed.

9. BOUNDARIES (§ 10) — ADDITIONS — PLATS.

A plat of an addition must be taken as a whole, and a corner will not be so changed as to cause a shifting of the position of all the lots in the addition.

Blair, C., dissenting.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by John Dolphin against Bertha Klann. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

This is an ejectment suit to recover possession of a strip 12½ feet wide, which the plaintiff alleges is the east part of lot 20 in block 2 of Chamberlain's addition to Springfield. The defendant claims that the strip constitutes the west part of lot 21 in said block. It is agreed that plaintiff owns lots 19 and 20 and that the defendant owns lots 21 and 22, and the dispute is as to the boundary line. The case was tried without a jury. On the written request of defendant, the court made a special finding of the facts and found for plaintiff. The defendant has appealed.

On March 21, 1887, one McCann conveyed to Chamberlain a tract of land described as follows: "Beginning in the center of Walnut street as laid down in Robberson's addition to the city of Springfield, Mo., eleven hundred and twenty-three (1,123) feet east of the range line dividing range twenty-one (21) and twenty-two (22); thence east along center of Walnut street projected four hundred ninety-six and three-tenths (496.3) feet to the west line of the right of way of the Springfield & Southern Railway; thence south and east on and along said west line of the right of way nine hundred fifty-four (954) feet to a point on the east line of the west half of the southwest quarter of the northeast quarter of section nineteen (19), township twenty-nine (29) north, range twenty-one west of the fifth (5th) P. M.; thence south on said line one hundred and seventy (170) feet to the center of Cherry street projected; thence west on and along said center of Cherry street projected six hundred and sixty-two (662) feet to the center of said section nineteen (19); thence north and along the line dividing the east and west halves of section nineteen (19) four hundred and seventy-two (472) feet to the center of Elm street projected; thence west on and along the center of said Elm street projected three hundred and thirty (330) feet; thence north five hundred and nineteen feet to the center of Walnut street projected; the place of beginning. Reserving for the ordinary purposes of roads and highways a strip of thirty (30) feet off the north and south side and sixty feet through the center portion running from the point where Elm street projected joins this tract of land to the right of way of the Springfield & Southern Railway."

On April 5, 1887, Chamberlain filed a duly executed and acknowledged plat of said addition in the office of the recorder of deeds, in which the land included was described just as in the deed to him. The plat is as follows:

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

It is conceded by the evidence on both sides that the starting point and the distance along the north boundary of the addition are correct, and that by following the right of way of the railroad southeastwardly the distance of just 954 feet called for, and running thence south 170 feet just reaches the center of Cherry street, and that running thence west with Cherry street 662 feet just reaches an old post and wire fence, which runs a short distance north and is thence continued by a hedge fence; and such evidence of both sides shows that, with the boundaries of the addition thus run, the line between the plaintiff and defendant is where defendant claims that it is, and that on a part of that line as claimed by the defendant there was, shortly before the trial, an old fence which had inclosed defendant's garden.

The plaintiff claims that the east boundary of the W. ½ of the S. W. ¼ of the N. E. ¼ of the section is 18 feet further east than is called for by the distance of 954 feet along the right of way, and that the description in the plat should be so construed as to hold that such line is the east boundary of the addition. Plaintiff also claims that the center of the section is 12½ feet further east than is called for by such measurements.

Mr Culler, who had been county surveyor for 3½ years, made a survey by which he located the line between the parties at the place contended for by the defendant.

Mr. Phillips, who had been county surveyor and city engineer and surveyor under the government, testified as follows: "Q. Now I will ask you, in accordance with that, where the west line of Mr. Dolphin's lot No. 19 would be, according to Mr. Culler's survey there? Where would it be in reference to the poles of the street railroad company in the street there? A. It would be in the neighborhood of 12 feet west. Q. In the street? A. Yes, sir. Q. Now it would come clear outside of the poles of the street railway there? A. I think so. Q. What lot was taken for that street? A. Eighteen. Q. Now Mr. Schmook asked you about the west line, is it? A. For a short distance it is an old post and wire fence running north, and then — Q. Well, next to Cherry street, what sort of a fence is it? A. At the southwest corner of the addition? Q. Yes. A. It is an old wire fence, and then runs into a hedge fence. Q. Where is that fence in reference to the center line of the addition there, the line mentioned in the description in the plat here? A. It is 12 feet further west. Q. I will ask you if you know whether on the east of that addition if there is a tract of land, according to Mr. Culler's survey if he is correct, if there is any land not claimed by anybody in the addition there? Is there a strip over there on the east? A. There would be; yes, sir. Q. Of how much? A. It would leave 18 feet over there. Q. Now take this fence on the west which you say — the hedge fence which you say is 12 feet west of the center line; how does that correspond with the line of the tract south of that, with the west line of Pickwick place? A. It would correspond very closely. Q. That fence or that line as you claim it does that correspond with the west line of Pickwick place? A. Yes, sir; it is on the line with those old trees, an old fence before the old fence was taken down. Q. The line through the center of the section as you found it there corresponds with the west line of Pickwick place? A. Yes, sir; it corresponds with the line of trees. Q. Have you surveyed that section 19 pretty generally? A. Yes, sir. Q. You know where the section lines are? A. Yes, sir."

He also testified: "Q. Now did you and Mr. Culler make that survey in the center of Walnut street along the railroad right of way 954 feet? A. We did. Q. Now when you came to the 954 feet were you to the center of Cherry street? A. Not quite. It don't quite reach the intersection of Cherry street. Q. Now when you got 954 feet you got to the section line, or the half section line, which is it? A. It is a quarter quarter line. But it don't reach it. Q. How many feet east or west of that quarter quarter line is it? A. About 18 feet. Q. Which way? A. This 954 feet stops short of it. Q. Now what section is that in? A. Nineteen. Q. That is in section 19. Is section 19 a section that contains lots? A. Yes, sir. Q. On the west? A. Yes, sir; fractional section. Q. The...