Gloyd v. Franck
| Decision Date | 12 March 1913 |
| Parties | ALBERT M. GLOYD and FLEMMON E. GLOYD, Appellants, v. FREDERICK FRANCK |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.
Reversed and remanded.
Evans Williamson & Estill for appellants.
(1) There is a surplus in the block in question and it should be apportioned among the lot owners in proportion to their respective holdings. Crawford v. Ahrnes, 103 Mo. 96; Newcomb v. Lewis, 31 Iowa 490; Lincoln v Edgecomb, 28 Me. 275; Caylor v. Luzadder, 137 Ind. 319; Parks v. Boynton, 98 Pa. St. 370; O'Brien v. McGrame, 27 Wis. 446; Brooks v Stanley, 66 Neb. 826; 4 Am. & Eng. Ency. Law, p. 868; Pereles v. Magoon, 78 Wis. 27, 23 Am. St. Rep. 389; Miller v. Land Co., 44 Kan. 355; McAlpine v. Reicheneker, 27 Kan. 257; Clayton v. Feig, 179 Ill. 534; Anderson v. Wirth, 131 Mich. 183; Helm v. Wilson, 89 Cal. 593; Eshelman v. Malter, 101 Cal. 233; Martz v. Williams, 67 Ill. 306; Witham v. Cutts, 4 Me. 31; Wyatt v. Savage, 11 Me. 429; Long v. Merrill, 24 Pick. (Mass.) 157; Bloch v. Pfaff, 101 Mass. 535; Reimers v. Quinnin, 49 Mich. 449; Wolfe v. Scarborough, 2 Ohio St. 361; Marsh v. Stevenson, 7 Ohio St. 264; Sugar Valley L. Co. v. Barber, 87 Pa. St. 313; Knippa v. Umlang, 27 S.W. 915; Jones v. Kimble, 19 Wis. 429; Westphal v. Schultz, 48 Wis. 78; Francois v. Maloney, 56 Ill. 399; Robeson v. Howell, 23 La. Ann. 601; Baldwin v. Shannon, 43 N.J.L. 596; Sellers v. Reed, 46 Tex. 377; Ware v. McQuinn, 7 Tex. Civ. App. 107. (2) The court erred in giving instruction 8 asked on behalf of respondent. Bowman v. Lee, 48 Mo. 335; Dalby v. Snuffler, 57 Mo. 294; Bradley v. West, 60 Mo. 33; Truner v. Hall, 60 Mo. 271; Huckshorn v. Hartwig, 81 Mo. 648; Milling Co. v. Riley, 133 Mo. 574; Hunnewell v. Burchett, 152 Mo. 611; Wilkerson v. Filer, 114 Mo. 245; Adkins v. Tomlinson, 121 Mo. 487; Crawford v. Ahrnes, 103 Mo. 95; Golterman v. Schiermeyer, 125 Mo. 291; Thomas v. Babb, 45 Mo. 384; Sherwood v. Baker, 105 Mo. 477; Abbott's Trial Ev. (2 Ed.), p. 905, sec. 37. (3) No adverse possession sufficient to vest the title by limitation in respondent is shown by the evidence. Anderson v. McPike, 86 Mo. 393; Shad v. Shart, 95 Mo. 573; Cole v. Parker, 70 Mo. 380; Tamm v. Kellogg, 49 Mo. 118; Houcke v. Batton, 68 Mo. 84; Jacobs v. Moseley, 91 Mo. 457; L. & M. Co. v. Jewell, 200 Mo. 707; Budd v. Collins, 69 Mo. 129; Wilkerson v. Thompson, 82 Mo. 317; Fulkerson v. Brownlee, 69 Mo. 371.
E. Wright Taylor for respondent.
(1) Kansas City established and opened Ninth street in the year 1870, 49.50 feet wide, with its center line at Walnut 4.57 feet north of the north line of Swope's Addition. Did this strip in the middle of Ninth street belong to Ross & Scarritt, to Smart & Swope, or to nobody? No witness was asked this question; no one can answer from the evidence. Kansas City took this strip 4.57 feet wide and also 20.18 feet more dedicated by Swope's plat, in all 24.75, for Ninth street in 1870. Then there remained north of lot 62 a strip of 4.57 feet vacated and abandoned by Kansas City. Lot 62 adjoined Ninth street according to the plat. The Ninth street frontage was an appurtenance of lot 62; it had the right to abut on the street. Such is the law. When the United States bought lot 62 for its postoffice it moved its property line to the street as established by the city and built the stone fence that now marks the south line of Ninth in 1881. There is not and never has been a "surplus" in this block. Lot 62 has gained what Kansas City abandoned when she established the south line of Ninth street 24.75 feet south of the south line of Ross & Scarritt's Addition. (2) Even if the strip in controversy be deemed a part of lot 57, yet appellants cannot recover because of adverse claim and possession. Since 1883, Franck's building has occupied this strip; since 1883, his location by the county surveyor has been of public record. (3) The first count of plaintiff's petition is a suit to quiet title under sec. 650, R.S. 1899. Respondent's instruction 8 is copied from the statute. Possession is not a material element in issue. Suit may be brought by any person "whether in possession or not" against any person "whether in possession or not." The Statute of Limitations applicable to real actions applies. Haarstick v. Gabriel, 200 Mo. 242. Franck and his grantors under the facts proven in this case had the right, and were bound, to rely upon the calls and distances of the recorded plats of Swope's Addition for the actual physical dimensions and location of their lot 58. Clark v. McAtee, 227 Mo. 192; Whitehead v. Atchison, 136 Mo. 485; Dolde v. Vodicka, 49 Mo. 98.
On April 16, 1857, Thomas H. Swope was the owner of the southeast quarter of the northwest quarter of section five, township forty-nine, range thirty-three, in Jackson county, except a narrow strip off the west side. On that day he filed the plat of "Swope's Addition" to Kansas City. That plat purports on its face to have been made on a survey by "C. P. Wiggin, Surveyor." It also purports to cover a tract of land 1320 feet from north to south and about 1200 feet from east to west. It dedicates 24 3/4 feet on the north side of it to Cherokee street and also shows Shawnee street sixty feet wide, distant 383 1/2 feet south of Cherokee street. It shows Grand avenue near the center of the plat, and shows James street sixty-six feet wide next west of Grand avenue. There is nothing on the plat to indicate on what ground it is located. To all appearances it was just a paper tossed by the winds. But from the very first it was given not only a name but a "local habitation," i. e., on the above described tract.
At the same time Ross & Scarritt were the owners of the south half of the forty acre tract immediately north of the above mentioned tract; and on April 30, 1857, just two weeks after the filing of Swope's plat, they filed the plat of "Ross & Scarritt's Addition." It, like Swope's, called for no particular tract of land or monument. But, from the first, it has been assigned by everybody concerned to the land so owned by them. The line between those two tracts of land has always been known beyond dispute. That line is the center of what was then Cherokee, now Ninth, street. Shawnee street next south of it is now Tenth; and James street is now Walnut. Ninth and Tenth streets are located on the ground now just as they were when first opened, which we presume occurred immediately after the filing of Swope's plat. There are eight lots shown on that plat fronting west on the east side of Walnut between Ninth and Tenth, numbered from lot No. 55 on the south to No. 62 on the north inclusive. Those lots are all marked on the plat as forty-eight feet wide except lot No. 62 which is marked 47 1/2 feet.
It is conceded by all parties that between Ninth and Tenth streets on the east side of Walnut the distance measures 388.07 feet, or 4.57 feet more than called for by the plat.
Plaintiffs own lot No. 57, which is the third lot in order from Tenth street. Defendant owns lot No. 58, which is next on the north.
In 1883, defendant's lot No 58 was owned by one Doan, and plaintiffs' lot was owned by the United Presbyterian Church, the title being in trustees. Preparatory to building on lot No. 58, Doan had it surveyed in 1883. The surveyor simply measured from Tenth street north assigning to each lot a front of forty-eight feet and marked the north line of lot No. 58 on the rock which stood above the grade of the street as a point 192 feet north of Tenth street. Doan excavated the lot and built a two-story brick business house thereon forty-six feet wide, aiming to place it one foot from the lot line on each side. The building ran back 100 feet, leaving 15 1/2 feet of open area between the building and the alley. That area was not fully excavated, but sloped from the alley down towards the bottom of the building, which was on grade. The east end of that building was 54/100 of a foot further south than the west end. The wall of the excavation on the south was irregular and jagged, and from the building east to the alley it projected some places north of the line of the wall, and some places it was south of that line. It seems that the excavation was almost entirely of rock.
The title to lot No. 57 passed out of the trustees of the church in 1887, and on December 26, 1906, it was vested in the plaintiffs. The defendant became the owner of lot No. 58 on August 16, 1902. There was never any discussion or dispute as to the boundary line until after the purchase by the plaintiffs. By accident or otherwise, the other lots seem to have been improved of the width to which they are entitled after allowing their pro rata of the surplus.
By apportioning the surplus among all the lots, the south line of lot No. 58 falls 38/100 of a foot north of the southwest corner of defendant's building, and the north line falls 2.95 feet north of the northwest corner of that building. The south face of the wall of the building on lot No. 59 stands just two feet nine inches north of the north wall of defendant's building as it was originally. In other words, the south face of the wall on lot No. 59 is almost exactly on the north line of lot No. 58 as located by apportioning the surplus.
Soon after Mr. Franck bought lot No. 58 he had it surveyed by Mr Tuttle, who told him that there was a surplus and that his south wall was 38/100 of a foot too far south and that the right way would be for him to take the surplus on the north between his building and the next building. Mr. Franck immediately reached out with his right hand and took what was coming to him on the north, and with his left hand he held on to what he...
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