Edie v. Coleman

• Decision Date: 20 May 1940
• Docket Number: No. 19705.,19705.
• Citation: 141 S.W.2d 238
• Parties: EDIE v. COLEMAN et al.
• Court: Missouri Court of Appeals

141 S.W.2d 238

EDIE v. COLEMAN et al.

No. 19705.

Kansas City Court of Appeals. Missouri.

May 20, 1940.

Rehearing Denied June 10, 1940.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Action by S. C. Edie against M. B. Coleman and others in ejectment. From an adverse judgment, plaintiff appeals.

Affirmed.

Miller, Gumbiner, Sheffrey & Van Valkenburgh, of Kansas City, for appellant.

Wm. Bush, of Kansas City, for respondents.

BLAND, Judge.

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 Olive Streets, in Kansas City, described as the south 35 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 12½ feet of Lot 37 and the south 22 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 22 inches in width, which is upon the lot of plaintiff so that the north edge of said concrete sidewalk is 3 feet 4 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 20 inches in width and at one point 3 feet 6 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 property 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 12½ feet of Lot 37 and the South 22 feet of Lot 38, Sunset View, Kansas City, Missouri, and known as 3647 Olive, so far as the witness is concerned it does so by mistake and he had no knowledge of it until he was advised of that fact by Mr. Berger in 1933. At the time Mr. Berger told the witness about it, witness thought dead sure Berger was wrong and advised him to have a survey made."

He further testified: "It was not until 1933 that the witness had any notice that the house known as 3647 Olive Street and the house known as 2410 East 37th Street extended over onto the lot upon which Mr. Berger's house stood, and if they do extend over onto that lot it is without the witness' knowledge. Witness never had any intention during the time he lived on the lot of claiming title to any property that Mr. Berger owned at that time and he didn't claim to own it because he didn't know he was on it. If he had known he was on it, he would have been glad to have paid Mr. Berger the cost per foot of the lot. Never at any time did he claim to own any part of the North 12½ feet of Lot 37 and the South 22 feet of Lot 38, Sunset View, in Kansas City, Missouri, by adverse possession. Witness never had a survey made of his property. He lost possession and ownership of his two houses about 1933 by foreclosure. The allegation in the defendants' second amended answer that the witness had been in actual, open, notorious, exclusive, adverse, and hostile possession of that part of plaintiff's property which was encroached upon is not true `because I didn't know I had possession of it'.

"Q. Then as I understand it you only, during the time you lived there and the time you owned that property—you only pretended to own the real estate which you had purchased by deed from G. M. Baltis in 1907, whatever that real estate happened to actually be according to that deed? A. That is correct.

"Q. And that you didn't ever intend to own any other land except that? A. That is right."

He further testified that "At the time the witness owned the corner property he did not know that the buildings and improvements encroached on the property on the north. When he made the mortgage to the Commerce Trust Company he warranted that he had title to the corner property according to its legal description. At that time the Commerce Trust Company looked at the property and told him they would let him have $3,000.00 on it. He told them where the property was and what he had on it and he claimed to own both houses. At the time 2410 East 37th Street was built and at the time 3647 Olive Street was remodeled had witness learned the following week that the improvements encroached on the lot north of him, he would have let Baltis move the house because he did not want to be on somebody else's ground or he would have paid him the value per foot for it. He was not willing to do that at the time because he did not know anything about it, but had he known it he would have been willing to do so. * * * The witness claimed to own the houses or thought he owned them, he told the Commerce Trust Company he owned them and they were the only people to whom he had to make that claim. He had lived in one house and held himself out to the neighbors as the owner. He does not know what is meant by notorious. He had possession but he didn't know he had possession of another man's ground. He thought it was his ground during the 15 years he lived there and during the 20 or 25 years he owned it. * * * He never claimed to own as against Mr. Berger or anyone else title to the Edie property even though his houses extended over onto that lot. He didn't claim any title to it and wouldn't have claimed it had he been shown that there was a mistake because he did not want anything that did not belong to him. * * * Witness was not trying to steal another man's land but did claim to own the house regardless of where the line was."

Defendant M. B. Coleman testified that he went out to inspect the property before purchasing the note and deed of trust; that the property was then in the same condition as it was at the time of the trial; that he did not know that the improvements encroached upon plaintiff's lot; that in order to remove the encroachments it would be necessary to "go down and re-build a wall in the basement, but you would have to take that north wall off. I would still be on it and I couldn't handle a house with the wall pulled out from under it"; that the cost of the work...