Edie v. Coleman

• Decision Date: 20 May 1940
• Citation: 141 S.W.2d 238,235 Mo.App. 1289
• Parties: S. C. EDIE, APPELLANT, v. M. B. COLEMAN, BELLE E. COLEMAN, C. B. McKEEVER AND CURTIS L. CARTER, RESPONDENTS
• Court: Kansas Court of Appeals

141 S.W.2d 238

235 Mo.App. 1289

S. C. EDIE, APPELLANT, v. M. B. COLEMAN, BELLE E. COLEMAN, C. B. McKEEVER AND CURTIS L. CARTER, RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 20, 1940

Writ of Certiorari quashed by Supreme Court, April 18, 1941.

Appeal from Jackson Circuit Court.--Hon. Brown Harris, Judge.

AFFIRMED.

Judgment affirmed.

Miller Gumbiner, Sheffrey & Van Valkenburgh for appellant.

(1) The court erred in rendering judgment for and in favor of respondents, and against the appellant. Because under the findings of fact numbered I, II, III, IV, V and VI as given by the court, and declaration of law numbered I as given by the court, the judgment had to be for and in favor of appellant and against the respondents. Welsh et al. v Brown (Mo.), 96 S.W.2d 345; Bell et al. v. Barrett et al. (Mo.), 76 S.W.2d 394. (b) Because there is a total failure of proof of adverse possession by respondents and appellant's record legal title to the premises is paramount unless title by adverse possession is established in respondents. Welsh et al. v. Brown (Mo.), 96 S.W.2d 345; Ware v. Cheek (Mo.), 201 S.W. 847; Courtner v. Putnam et al. (Mo.), 30 S.W.2d 126. (c) Because mere possession by respondents of a part of appellant's land, by mistake and without knowledge of the possession, no matter for what period of time, does not work a disseisin against appellant nor establish title by adverse possession in respondents. Bell et al. v. Barrett et al. (Mo.), 76 S.W.2d 394; Ware v. Cheek (Mo.), 201 S.W. 847; Courtner v. Putnam et al. (Mo.), 30 S.W.2d 126; Schad v. Sharp (Mo.), 95 Mo. 573, 8 S.W. 549; Foard v. McAnnelly (Mo.), 215 Mo. 371, 114 S.W. 990. (2) The court erred in refusing to give appellant's requested findings of fact numbered V and VI, and in modifying the same, and in giving the same as modified, because the modifications were immaterial to the issues in the case, and the modifications indicate and establish that the trial court erroneously believed and decided the case on the assumption that a claim of title and ownership of a partly encroaching permanent improvement which had encroached upon appellant's premises for more than ten years, without more, constituted adverse possession of the real estate, the record legal title to which real estate at all times vested in appellant and appellant's grantors. Bell et al. v. Barrett et al. (Mo.), 76 S.W.2d 394; Ware v. Cheek (Mo.), 201 S.W. 847; Courtner v. Putnam et al. (Mo.), 30 S.W.2d 126; Schad v. Sharp (Mo.), 95 Mo. 573, 8 S.W. 549; Welsh et al. v. Brown (Mo.), 96 S.W.2d 345. (3) The court erred in refusing to give appellant's requested declaration of law numbered II because it correctly declares the law applicable to the facts of the case and required the respondents to assume the burden of establishing and proving their defense of adverse possession. Welsh et al. v. Brown (Mo.), 96 S.W.2d 345; Bell et al. v. Barrett et al. (Mo.), 76 S.W.2d 394. (4) The court erred in refusing to give appellant's requested declaration of law numbered III because it correctly declares the law applicable to the facts of the case and required respondents to prove all of the elements of adverse possession by competent evidence. Welsh et al. v. Brown (Mo.), 96 S.W.2d 345; Bell et al. v. Barrett et al. (Mo.), 76 S.W.2d 394.

Wm. Bush for respondents.

(1) On behalf of plaintiff, there was an entire failure of proof because under the statute, before plaintiff could recover possession of the property sued for, he must prove he has had possession of said property within ten years of the date of bringing the suit, to-wit, February 23, 1935. Sec. 850, R. S. Mo. 1929. (2) The exclusive possession under claim of ownership of valuable permanent improvements for the statutory period of ten years, amounts to a disseisin and all adverse claimants are prohibited by statute from maintaining a suit for possession after the expiration of such statutory period. Sec. 850, R. S. Mo. 1929; Note in 97 A. L. R., page 14; Sands v. Clark, 250 S.W. 58; McDaniels v. Butburth, 270 S.W. 353; Koch v. Gordon, 231 Mo. 645, 133 S.W. 609; Milligan v. Fritts, 226 Mo. 189, 125 S.W. 1101; Hedges v. Pollard, 149 Mo. 216, 50 S.W. 889; Diers v. Peterson, 290 Mo. 249, 234 S.W. 792; Gloyd v. Franck, 248 Mo. 468, 154 S.W. 744; Davis v. Braswell, 185 Mo. 576, 84 S.W. 870; Battner v. Baker, 108 Mo. 311, 18 S.W. 911; Handlan v. McManus, 100 Mo. 124, 13 S.W. 207; Hamilton v. West, 63 Mo. 93; Flynn v. Wacker, 151 Mo. 545, 52 S.W. 342; Mangold v. Phillips, 186 S.W. 988.

OPINION

BLAND, J.

This is an action in ejectment. The case was tried before the court, without the aid of a jury, resulting in a judgment against the plaintiff and he has appealed. The appeal was taken to the Supreme Court but that court found that jurisdiction of the appeal rested in this court and transferred the case here.

The suit was brought against M. B. Coleman, Nellie E. Coleman, and their tenants, C. B. McKeever and Curtis L. Carter. However, the last two persons did not appear in the action. The judgment was in favor of M. B. and Nellie E. Coleman, who are hereinafter called defendants.

Plaintiff claimed title to the property in controversy by reason of being the record owner thereof. Defendants claim the property by adverse possession.

The facts show that defendants own property situated at the northeast corner of 37th and Oliver Streets, in Kansas City, described as the south thirty-five feet of Lot 37 Sunset View. Plaintiff is the record owner of the property adjoining to the north, which property is described as the north twelve and one-half feet of Lot 37 and the south twenty-two feet of Lot 38 Sunset View. In the year of 1907 and ever since there was a dwelling house on the lot now owned by defendants, and then owned by one Baltis, known as 3647 Olive Street, which dwelling house was wholly upon defendants' lot and did not, at that time, extend over on to the property now owned by plaintiff. In that year the property was sold and conveyed by Baltis to one Jack O. Cooper. In the year of 1909 Cooper had Baltis build a second dwelling house facing south on the lot now owned by defendants, which house was known and described as 2410 East 37th Street. This house has at all times extended over and upon the premises and lot now owned by the plaintiff at a point beginning 102.9 feet east of the west line of plaintiff's lot and continuing east 16.9 feet, said dwelling house extending over and upon plaintiff's lot 1.54 feet at the west end of the encroachment and 1.48 feet at the east end thereof. This dwelling house was, and is, adjoined by a concrete sidewalk twenty-two inches in width, which is upon the lot of plaintiff so that the north edge of said concrete sidewalk is three feet four inches north of the south line of plaintiff's lot.

Subsequent to the year of 1909, and on a date unknown, Cooper had Baltis build an addition to the dwelling house known as 3647 Olive Street, consisting of two bedrooms, a bath, a concrete drain and a basement under said rooms. Said addition, at the time it was built, and ever since, has extended over and upon the lot and premises now owned by plaintiff, commencing at a point 66.6 feet east of the west line of plaintiff's lot and continuing 17.6 feet east thereof, extending over and upon plaintiff's lot, as aforesaid .34 feet at the west end of said addition and .16 feet at the east end thereof and, in addition thereto, and adjoining said addition, as aforesaid, on the north and on the east thereof, and on plaintiff's lot, there was constructed a concrete walk twenty inches in width and at one point three feet six inches in width. All of the encroachments on plaintiff's ground were shown by a plat or survey introduced in evidence, and stipulated by the parties as being correct.

Cooper mortgaged his property to the Commerce Trust Company and defendants purchased the note secured by the deed of trust in April, 1930, and acquired title to the property by foreclosure of the deed of trust on March 23, 1933. Plaintiff acquired his property from one Herman A. Berger on June 24, 1924. At this time, all of the improvements aforesaid had been erected for some time. About the time defendants acquired title to their property, plaintiff decided to build a concrete driveway along the south side of his and caused the survey above mentioned to be made on March 29, 1933, which disclosed the encroachments on plaintiff's lot as above set forth. Shortly thereafter plaintiff made demand for the possession of the property encroached upon and defendants refused to remove the dwelling house, encroachments or extensions, resulting in this suit being brought on February 23, 1935.

The evidence further shows that neither plaintiff, nor defendants nor their predecessors in title, knew of the encroachments in question until March 29, 1933.

Jack O Cooper, a witness for plaintiff, testified that he "did not know that the addition to 3647 Olive nor the rear of the house facing south on 37th Street encroached upon the lot to the north of him. He didn't know it then (when the encroachments were made) and he doesn't know it now except from the plat (survey) and assuming that the plat is correct. The first he knew that there was any controversy about the boundary was when he met Mr. Berger in 1933 and was informed by Mr. Berger that S. C. Edie had filed suit against said Berger because the two houses were on Edie's lot." He further testified: "If any part of the houses on the property formerly owned by the witness on the northeast corner of 37th & Olive Street in Kansas City, Missouri, extend over onto the North twelve and one-half feet of Lot 37 and the South twenty-two feet of Lot 38, Sunset View, Kansas City, Missouri, and known as 3647 Olive,...