Dudeck v. Ellis
| Decision Date | 09 March 1964 |
| Docket Number | No. 49581,No. 1,49581,1 |
| Parties | Earl R. DUDECK, Robert Dudeck, William E. Courter and Daisy B. Courter, (Plaintiffs) Respondents, v. LeRoy ELLIS, Defendant and Third-Party Plaintiff, Appellant, v. Pearl W. and Dorothy SCHWEIZER, Raymond G. and Ruth Schweizer, and Calvin W. and Rita Schweizer, Third-Parties Defendants, Respondents |
| Court | Missouri Supreme Court |
Randolph & Randolph, by Lewis F. Randolph, St. Joseph, for appellant.
Downs & Pierce, St. Joseph, for respondents Earl R. Dudeck and Robert Dudeck.
Price Shoemaker and William L. Culver, St. Joseph, for William E. Courter and Daisy B. Courter.
Ronald S. Reed, Reed & Reed, St. Joseph, for respondents Pearl W. and Dorothy Schweizer, Raymond G. and Ruth Schweizer, and Calvin W. and Rita Schweizer.
LeRoy Ellis, defendant and third party plaintiff in this proceeding, has appealed from a judgment of the Circuit Court of Buchanan County entered against him on March 25, 1962, as hereinafter stated. A part of the action directly involves title to a number of specifically described tracts of real estate in Buchanan County, hence this Court has jurisdiction of this appeal. A number of different causes of action and cross actions to quiet title, in ejectment and for damages in favor of different named persons and against specifically named persons, because of their alleged interest in the different tracts of real estate, have been joined in one action, apparently on the ground that some common questions of law and fact are involved.
The respondents Schweizers state: 'Regardless of the nomenclature of the pleadings, these actions were separate and independent of each other, but during the course of this extended litigation (seven years) were treated by all of the parties and the court as having been voluntarily consolidated for trial * * *.' Further, the record, insofar as we have been able to find from a careful examination of the entire transcript, contains no order of the trial court for a separate trial of any claim or any issue involved, and we find no objection on the part of any party to the procedure followed.
To better understand the pleadings and issues presented, a brief statement of some of the facts is required. At and prior to the year 1915 the Missouri River, in the area where the alleged causes of action arose, was running from the northeast to the southwest and was heavily eroding the south bank of the river, so that farm after farm was being washed into the river. Subsequent to that date, the U. S. Corps of Engineers began revetment work on the south shore of the river adjacent to plaintiffs' lands to prevent continued erosion, and later, in 1933 and 1934, the U. S. Corps of Engineers constructed a series of dikes extending out into the main channel of the river, more or less perpendicular to the 1915 high bank. Five of these dikes are referred to in the evidence as push dikes, apparently because they were intended to push the current of the river away from the south shore. North and south of the five push dikes, certain other dikes, referred to as trail dikes, were constructed more or less parallel to the south shore of the river. Ultimately, the main channel of the river was moved far to the north (3/4 of a mile according to some witnesses), where a new high bank was created on the south side of the river. In 1952 the main channel of the river was diverted to an area far east of the mentioned series of dikes, and portions of the bed of the river, as it existed in 1952, were exposed.
In September 1940 defendant-appellant Ellis purchased from Buchanan County certain real estate alleged to have been of island formation in the Missouri River. It lay off to the north of the 1915 high bank of the river. This alleged island, consisting of more than 215 acres, was more or less of crescent shape, with the outside curve on the north and with one end of the crescent pointing east and the other end pointing south and the inside of the crescent conforming, more or less, to the 1915 high bank of the river, but with varying distances away from the said 1915 high bank. The area between the metes and bounds description of the south shore of the alleged island and the 1915 high bank of the river (estimated at 25-30 acres) was not surveyed or sold by the county. It further appears that plaintiffs-respondents Dudecks, Bledsoe and Courters owned adjacent tracts of land facing north upon the south bank of the river. They had inherited the property and obtained deeds in partition. The legal description of their respective properties was set forth in the respective deeds obtained in 1953. The pleadings of the plaintiffs were not accompanied by any plats or drawings tending to show that relationship of any of the respective tracts of real estate to the 1915 high bank of the river, or to the alleged island, although it appears from the evidence that prior to the stabilization of the south bank of the river a portion of the real estate alleged to have been acquired by the respective parties plaintiffs had long since gone into the river. Nevertheless, they thought they still owned the area within the metes and bounds description in their deeds. A different situation existed with reference to the third party defendants Schweizers' title, but that situation need not be reviewed here in view of the conclusions we have reached.
From the foregoing statement of facts, it is not surprising that most of the issues presented by the pleadings would turn on whether or not the land purchased by defendant-appellant Ellis from Buchanan County was of island formation and first appeared as a sand bar in the river at low water mark and was wholly surrounded by water in the channel of the river; and that it thereafter grew from such a beginning until it joined the 1915 high bank of the river, with only a slough between that carried water only when the river was high, or whether the entire area of the alleged island was formed by accretions to plaintiffs' 1915 high bank of the river and, whether said accretions continued to form and move out from plaintiffs' 1915 south bank of the river to the 1952 bank of the river as it existed when the main channel of the river was first diverted to the east.
With this preliminary statement of facts we must proceed to examine the specific issues and causes of action presented by the pleadings and first determine whether or not all of the issues presented by the pleadings with reference to all of the parties have been finally disposed of by the judgment entered after the verdicts of the jury were returned.
The first petition was filed on May 4, 1956 by five named persons, as plaintiffs, against LeRoy Ellis, as defendant. An amended petition was thereafter filed December 8, 1960, upon which the causes were ultimately tried to a jury along with other issues. This petition contained seven counts and concerned three separately described tracts of real estate. In the first count the Dudecks (brothers) as plaintiffs purported to state a cause of action in ejectment against defendant Ellis for a specifically described 16-acre tract of real estate in Buchanan County. Damages for withholding possession since April, 1956 and for rents and profits were requested.
In a second count the same parties, as plaintiffs, stated a cause of action for damages against defendant Ellis, and alleged that he entered upon the property described in count one, and illegally cut and carried away certain cottonwood trees of the value of $1,000. (There is a recital in the transcript that this count was stricken during the course of the trial.)
In the third count the Dudecks stated a cause of action in quiet title against defendant Ellis for the property described in count one and alleged that defendant Ellis claimed some right, title or interest under a patent from the county, the exact nature and extent of his claim being unknown. Plaintiffs Dudecks also sought to enjoin and restrain the defendant from setting up any claim, title or interest in or to said real estate. No facts were stated in the count sufficient to invoke the jurisdiction of a court of equity.
In the fourth count Winifred Maude Bledsoe stated a cause of action in ejectment for a specifically described tract of real estate in said Buchanan County, containing 15 acres. She prayed for damages and for monthly rents and profits since April, 1956.
In the fifth count plaintiff Bledsoe stated a cause of action against defendant Ellis to quiet title to the specifically described property in count four. She stated that the exact nature and extent of defendant's claims were unknown to her. She asked to be declared the fee simple owner of the described property and that defendant be forever enjoined and restrained from asserting or claiming any right, title or interest therein. Again, this count did not state facts sufficient to invoke the jurisdiction of a court of equity, even though equitable relief was requested.
In the sixth count W. E. Courter and wife, as plaintiffs, stated a cause in ejectment against defendant Ellis for a particularly described tract of real estate, containing 11 acres more or less and another tract containing 2 acres more or less, describing the same, and she asked for damages, rents and profits.
In the seventh count, the Courters, as plaintiffs, stated a cause of action in quiet title against defendant Ellis for the real estate described in count six. They alleged that the exact nature and extent of his claims were unknown to them.
In his amended answer to these several counts filed on July 31, 1959, defendant Ellis alleged that he was the owner of a tract of specifically described real estate in Buchanan County containing 215.04 acres more or less; that he had acquired said land from said Buchanan County on the 14th of October, 1940 by a patent issued by the county, which patent had been filed of record on the same date; that the...
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