Gerst v. Flinn, s. 42009

• Decision Date: 14 April 1981
• Docket Number: 42022,Nos. 42009,s. 42009
• Citation: 615 S.W.2d 628
• Parties: John J. GERST, Plaintiff-Respondent, v. Robert A. FLINN and Ione A. Flinn, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 628

615 S.W.2d 628

John J. GERST, Plaintiff-Respondent, v. Robert A. FLINN and Ione A. Flinn, Defendants-Appellants.

Nos. 42009, 42022.

Missouri Court of Appeals, Eastern District, Division Two.

April 14, 1981.

Jack Gallego, Troy, for defendants-appellants.

Paul F. Niedner, St. Charles, for plaintiff-respondent.

WEIER, Judge.

This is a suit that had as its major objective the quieting of title to a tract of land in Lincoln County containing 3.129 acres. The land is roughly triangular in shape with the apex of the triangle north of a base line formed by the east-west quarter section line of section 11, township 49 north, range 3 west of the fifth principal meridian. The northwestern side of the triangle runs from the base line northeast to the apex some 347 feet. The northeastern side runs from the apex irregularly along the base of a bluff southeastwardly 1,071 feet to the channel of Camp Creek. The east end of the triangle is truncated by the creek and there the boundary follows the creek south a distance of approximately 40 feet to the base line. The tract is then closed by returning westwardly on the base line.

The tract was described by the surveyor as being marsh land with a drainage problem and contains a large spring approximately 122 feet northeast of the southwest corner of the triangular tract. Along the northwest side of the triangle is a roadway that at one time had been a county road and whose maintenance had been abandoned by the county. The roadway continued to be used by those who had family members buried in a small cemetery at the top of the bluff and by those who entered the three-acre tract to gain access to a field generally described as containing 11 to 15 acres of cultivatable land owned by plaintiff.

Plaintiff's petition was in four counts. Two counts sought to quiet title in the triangular-shaped tract of land, one on the basis of a complete chain of title and the other upon the theory of adverse possession. The other two counts of the petition concerned the old roadway that extended along the northwest side of the triangle. The first of these remaining counts sought to establish plaintiff's user rights on the basis that there had never been a complete abandonment of the roadway and the second count sought prescriptive rights through adverse user. Plaintiff prayed that title to the triangular tract be vested in him, for actual and punitive damages and for injunctive relief to restrain the defendants from maintaining a fence across the roadway together with a mandatory injunction to compel them to remove the fence. The case was tried to the court without a jury and the court decreed title in the plaintiff. It also awarded plaintiff the right to continued use of the old roadway adjacent to the northwestern line of the parcel of land for purposes of ingress and egress to the land described and ordered that defendants remove obstructions, barriers and fences erected by them preventing the use of the roadway and the removal of fences within the three-acre parcel. Defendants were also enjoined from any interference with plaintiff's possession of the land and the use of the roadway. Plaintiff's prayers for money damages were denied and costs were assessed against the defendants. From this judgment defendants have appealed with respect to the adjudication of title both on the failure to establish record title and adverse possession. Plaintiff has appealed from the judgment denying him money damages. We affirm the judgment of the trial court.

The source of the problem giving rise to this litigation lies in a warranty deed executed by Anton Bebermeier and Louisa Bebermeier to Henry Duewel executed by the Bebermeiers in 1875 wherein they conveyed the disputed land with this description:

"All of one acre of land in the S.E. corner of the S.W. 1/4 of the N.E. qr. Sec. Eleven. Also one half acre in the South west corner of the South East fourth of the North East quarter Section Eleven in Township forty nine Range Three west, containing in all one and a half acres, be the same more or less. Said land bounded on the North by the Bluff, and on the west by the first bank beyond the Walker Hopkins Spring."

Succeeding transfers in the chain of title down to plaintiff John Gerst followed generally this description and in the last deed the description eliminated references to the specific acreage but continued with the metes and bounds description on the northerly sides of the tract.

Defendants Robert A. Flinn and Ione A. Flinn have a chain of title that commenced with the Bebermeiers and in each of the mesne conveyances from Bebermeiers down to defendants Flinn an exception was inserted as to the Duewel tract using the same description hereinabove quoted. Testimony of the surveyor and other witnesses together with aerial photographs and documentary evidence sustained the court's judgment that John J. Gerst was the owner and entitled to possession of the triangular area to which we have first referred in this opinion and which contained a total of 3.129 acres. Although the original deed from the Bebermeiers called for only 1.5 acres and this quantity of land was the amount specified in the exception found in the Flinn title, calls for quantity in a legal description will, in case of a conflict, be controlled by and yield to boundary calls for a natural object, landmark or permanent artificial monument. State ex rel. Albert v. Adams, 540 S.W.2d 26, 30 (Mo. banc 1976); Czarnecki v. Phillips Pipe Line Company, 524 S.W.2d 153, 157(5-7) (Mo.App.1975). Where a description is...