Dowd v. Lake Sites, Inc.
| Decision Date | 14 February 1955 |
| Docket Number | No. 44128,No. 2,44128,2 |
| Citation | 365 Mo. 83,276 S.W.2d 108 |
| Parties | Robert G. DOWD and Marcellian B. Dowd, Joseph Dattilo and Jean Dattilo, Joseph Maciocia and Vera Maciocia, Charles Brusatti, Douglas O. Brooks, Harry Freise, Jr., and Hazel Freise, Frank Gianino and Dorothy Gianino, Roland H. Roediger, Gertrude E. Goessling, Lelia K. Goessling, Russell Park, Leo H. Kueper, Jr., and Caroline V. Kueper, W. J. Lammi and Mildred Lammi, Clifford Sherman and Darlis Sherman, Fred W. Fleck and Valeria M. Fleck, Frank H. Wagner, Louis Wilcox and James B. Gannon, Jr., Vance T. Brooks, Leo Marchi and Francis Marchi, Mrs. Della Walther, Stella Willoughby Bowman, Alice E. Grimm and Howard Grimm, Mrs. Bessie Park, Jane M. Willoughby Williams, Dorabelle McCall, Owen H. Griffiths and Olga M. Griffiths, Respondents, v. LAKE SITES, Incorporated, a corporation, Appellant |
| Court | Missouri Supreme Court |
Ziercher & Tzinberg, Clayton, and H. L. C. Weier, Hillsboro, for defendant-appellant.
Dearing & Matthes, M. C. Matthes, Hillsboro, for plaintiffs-respondents.
BOHLING, Commissioner.
Robert G. Dowd and Marcellian B. Dowd, husband and wife, and, as we read the record, twenty-five owners of one or more lots in Lake Tekakwitha Subdivision of Jefferson County, Missouri, instituted this suit as a class action on behalf of themselves and other lot owners in said subdivision to restrain the threatened granting of the privileges of said subdivision to owners of lots outside of the platted boundaries of said subdivision by Lake Sites, Incorporated, a corporation, and for a decree 'declaring that plaintiffs and other lot owners in said subdivision and their heirs, successors and assigns have the exclusive right to use' the lake, roadways and parkways therein. The decree of the court granted the injunctive relief prayed for in the petition, and adjudged and decreed that the respondents and other owners of lots in said subdivision, as shown by the plat of record thereof, their heirs, successors and assigns and guests 'have the exclusive right to use said Lake Tekakwitha Subdivision and all facilities and privileges incident thereto.' The defendant has appealed, contending respondents are not entitled to the relief granted.
Respondents suggest we may not have jurisdiction over the appeal, stating that title to real estate is not involved. They cite Stewart v. Stewart, Mo., 269 S.W.2d 49, 51, a partition suit wherein the only controverted issue was the method in which the partition was to be accomplished, there being no controversy regarding any share of the several tenants in common in the real estate. In the instant proceeding the pleadings sought an adjudication and the judgment adjudged and decreed in the lot owners, as an appurtenant to their respective lots, an 'exclusive' easement in the lake, roadways and parkways of the subdivision. A title controversy is in issue and adjudicated, and title to real estate is directly and not merely incidentally or collaterally involved. Jurisdiction of the appeal is in this court. Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, 774, 775; Farmers Drainage Dist. of Ray County v. Sinclair Refining Co., Mo., 255 S.W.2d 745, 748; Mills v. Taylor, Mo., 270 S.W.2d 724, 726; Hunter v. Hunter, 355 Mo. 599, 197 S.W.2d 299, 300; Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142, 143[1, 4].
The pleadings, the trial and the presentation here proceed upon the theory that respondents were deceived and induced to purchase their respective lots by reason of fraudulent representations made upon behalf of appellant by the salesmen of the lots.
Ed Buscher, as trustee for himself, Bill Buscher, Edward R. Blades and I. J. Shyne, acquired title to the NW fractional part of Sec. 29, Twp. 43, R. 3, containing approximately 144 acres. It was their purpose to create a lake thereon, plat the property, and sell the lots. Missouri State Highway F passes through the property, taking approximately 4 acres of the land. About 40 acres are north and 100 acres are south of said highway. The owners caused Lake Sites, Incorporated, to be organized, with Ed Buscher, President, Bill Buscher, Vicepresident and Assistant Secretary, John Wahl, Treasurer, and I. J. Shyne, Secretary. They, with Mr. Blades, constituted appellant's Board of Directors. The title to the 144 acres was transferred to said corporation. Theodore Hurtgen, a surveyor, was employed to survey the 144 acres, establish the shoreline of the lake to be created by the construction of a dam and to plat the property into lots. The lake covers approximately 20 acres. He platted the 100 acres south of the highway. He did not, at that time, finish platting the 40 acres north of Highway F.
Appellant was desirous of proceeding with the development. On May 24, 1949, appellant filed in the Recorder's Office of Jefferson County, Missouri, said plat of Lake Tekakwitha Subdivision, consisting of a lake, roadways, parkways, paths and 182 lots, divided into Blocks 1, 2, 3 and 4, all south of said Highway F, and proceeded with the sale of said lots. The surveyor did not plat the 40 acres north of Highway F until the Spring of 1952, and the 40 acres, being considered suitable for summer homes, was subdivided into larger tracts, there being 35 tracts in the plat thereof. When respondents were advised of the threatened sale of said tracts by appellant with the right to use the facilities of Lake Tekakwitha Subdivision in the purchasers thereof, this suit was instituted.
Under stipulation of the parties it was admitted that respondents were owners of lots in Lake Tekakwitha Subdivision and the following exhibits were introduced in evidence by respondents: A deed conveying the 144 acres to Ed Buscher as trustee. A deed conveying said 144 acres to appellant-corporation. A copy of the recorded plat of Lake Tekakwitha Subdivision. A copy of the application to purchase lots in said subdivision from appellant, such an application having been executed by each purchaser of a lot in the subdivision. A small photographic reproduction of the plat (with the dedication recitals omitted), convenient for handing to prospective purchasers. These exhibits are 'Plaintiffs Exhibits' A, B, C, D and E, respectively.
We briefly outline the parol evidence. The fraudulent representations, admitted over objections interposed on behalf of appellant, made by salesmen and inducing respondents to purchase lots in the subdivision were to the following effect: The subdivision as shown on the plat constituted the whole development. The lake, roadways, parkways et cetera of the subdivision were for the use and benefit of the owners of the lots therein and their guests. When the 182 lots shown on the plat were sold appellant was going to move out and turn the management of the subdivision over to the lot owners, who could form their own association. Respondents were not informed and did not know of appellant's intention to subdivide the land north of Highway F and sell lots or tracts therein with privilege of user of the facilities of Lake Tekakwitha Subdivision. There was testimony that some respondents purchased additional land in the subdivision or made improvements on their lots after being informed of appellant's intention to sell the tracts north of Highway F with the privilege of using the facilities of Lake Tekakwitha Subdivision.
On behalf of appellant: It was the intention of the incorporators from the beginning to subdivide the whole of the 144 acres, and sell the lots or tracts thus divided with the privilege of user of the lake, roadways and parkways of the subdivision. Theodore Hurtgen, a surveyor, was employed to lay out the subdivision. He was under pressure to perform other work and when he platted the 100 acres south of Highway F it was agreed that he might perform the other work with the understanding he was to return and subdivide the 40 acres north of Highway F. As stated the plat of the 100 acres was recorded and the sale of the 182 lots began. Although requested many times to complete his work, the surveyor did not subdivide the 40 acres north of Highway F until the Spring of 1952. Appellant entered into a written contract with H. Glenn Weber, who was engaged in the real estate business, to sell the 182 lots and also the lots or tracts north of Highway F when platted. The lots were sold by salesmen employed by Weber. Such lots as were sold by the incorporators of appellant were sold under Weber's direction, and they received a like commission on their sales. Appellant adduced testimony that the alleged fraudulent representations were not made, and that whenever the question arose, it was explained that the 40 acres north of Highway F was to be subdivided and the purchasers were to have the privilege of using the lake and facilities south of Highway F. Several purchasers of lots south of Highway F testified that when they made their purchases they were informed the land north of the highway was to be subdivided as a part of the original development and purchasers thereof would have the privilege of using the lake and other facilities shown on the plat. Appellant caused to be prepared and published prior to the sale of any lots newspaper articles in which the statement was made that the whole of the 144 acres were included in the development. Many purchasers own more than one lot. At the time of trial there were approximately 100 to 105 owners of property south of Highway F, and there remained of the 182 lots 14 to 16 lots unsold.
Appellant certified on the plat of the 100 acres (Respondents' Exhibit C) that Lake Sites, Incorporated 'is the owner of the lands comprising Lake Tekakwitha Subdivision,' being lands 'lying within the boundaries as shown upon this plat * * *.'
It is also expressly stated upon said plat that:
'Lake Sites, Incorporated, reserves the title to all roadways, drives,...
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