Grimes v. Armstrong

• Decision Date: 08 July 1957
• Docket Number: No. 2,No. 45488,45488,2
• Parties: I. E. GRIMES and Erie Grimes, Appellants, v. Blanche ARMSTRONG and Frank Armstrong, Respondents
• Court: Missouri Supreme Court

Page 793

304 S.W.2d 793

I. E. GRIMES and Erie Grimes, Appellants, v. Blanche ARMSTRONG and Frank Armstrong, Respondents.

No. 45488.

Supreme Court of Missouri, Division No. 2.

July 8, 1957.

Motion for Rehearing or for Transfer to Court en Banc Denied

Sept. 9, 1957.

Almon H. Maus, Monett, for appellants.

Royle Ellis, Cassville, for respondents.

EAGER, Presiding Judge.

This is a suit in three counts, to try and determine the title to real estate, for damages for alleged trespass, and to enjoin further trespasses. It was filed on May 13, 1955. Defendant Blanche Armstrong denied the substantive allegations, joined in the prayer for a determination of the title, and counterclaimed in ejectment. The case was tried by the court without a jury, and the findings and judgment were for defendants on plaintiffs' petition and against defendant on her counterclaim, the latter for the asserted reason that plaintiffs were not shown to be in possession of the land in question. Plaintiffs have appealed.

The dispute concerns a strip of land 34 feet wide and approximately 428 feet in depth in the town of Washburn, in Barry County. Plaintiffs, the Grimes, are admittedly the owners of Lots, 8, 9 and 10, Block 1, in Johnson and Plummers' Addition and also of 20 acres lying eastely from Lot 8; defendant Blanche Armstrong (who will hereinafter be referred to as the defendant) is admittedly the owner of Lots 1 to 4, inclusive, of Block 4 of the same addition and also of a certain unplatted portion of Block 4 lying east of those lots; these adjoin the Grimes' property on the south. Defendant Frank Armstrong was joined because he had allegedly committed certain of the trespasses charged. The properties of the opposing parties adjoin for a distance of approximately 428 feet. The line is generally east and west, but actually runs somewhat north of west and south of east. Plaintiffs acquired their property in September, 1943, and defendant acquired hers in August, 1943. On plaintiffs' land is a brick house, a barn and perhaps other buildings; on defendant's north lot was a dwelling house, now replaced by a filling station; there was also an old barn, back perhaps 150-200 feet from the front property line, and located near the disputed north property line. These properties front westerly on a street which is actually State Highway No. 37, and will be referred to as the highway. A driveway ran back at a right angle from the highway near the south side of the plaintiffs' place for about 150 feet, then turned northward to plaintiffs' house. The driveway is part of the disputed strip. In 1954 defendant constructed a filling station on the north part of her property and, during the course of construction, graded down a 'bank' just south of the driveway; plaintiffs claim that in so doing she also destroyed several trees and that the grading has caused surface water and mud to collect in the driveway.

Plaintiffs insist that the line of an old fence just south of the driveway was and is the correct boundary; also, that they have acquired title to the ground up to that line by adverse possession, and that such line was also established as an agreed boundary line. Much of the controversy on this appeal arises from the testimony of the county surveyor who established the boundary line 34 feet north of where plaintiffs claim it to be, thus placing the disputed strip within defendant's property lines. The court found and decreed (on Count 1) that such was the correct line, and found that plaintiffs had failed to establish title by adverse possession, primarily because the driveway had been used by defendant's tenants and others and that plaintiffs' possession had not been exclusive.

We shall not attempt to state the facts in great detail. It seems reasonably clear that for some years there was a wire fence just south of the driveway which ran east from a point near the highway; this fence had centainly become much dilapidated and perhaps had even disappeared (according to some testimony) by the time plaintiffs and defendant acquired their properties. Plaintiffs rebuilt the back part of the fence, beginning at a point variously estimated as from 150 to 200 feet east of the highway and running back to the east line of Lot 8, the terminus of the joint property line; Mr. Grimes testified that this was done in the fall or early winter of 1943. Plaintiffs' witnesses and Mr. Grimes testified that this new fence was put exactly where the old fence was, but defendant and her witnesses insisted that the new fence was moved south about 10 or 12 feet, and that the work was done after September, 1947. It seems that originally a sort of 'lane' led easterly from the highway the entire depth of the respective properties, with fences on both north and south and with gates leading to each side, the latter being about where the barns were located. However, after plaintiff Grimes moved in, he put up a cross fence east of the turn in the driveway, and he or his predecessors took out some or all of the north fence of the 'lane.' Defendant's property had generally been known as the 'Warren' place; various tenants lived on it or used the ground. According to various witnesses, the respective tenants, and others, used the now controverted driveway to go into the back part of the Warren place, including the barn, first through a gate and later simply through an open space where the fence had been. In other words, there had been for many years a sort of joint use of the 'lane' and driveway. There was no evidence that any of these people ever actually asked plaintiffs or their predecessors in title for permission to use it; all said that there never was any objection to the use. Mr. Grimes testified that he planted a few small trees along the south side of the driveway (which others denied), that he put gravel on it, and that he always 'claimed' the land up to the old fence. There was no evidence, however, of any discussion of the location of the property line by anyone until about 1954 when defendant had a survey made, with the single exception that defendant objected when, as she said, Mr. Grimes moved the rear part of the fence over 'on her.' Grimes testified that he rebuilt that fence in 1943, whereas defendant testified that it was after September, 1947. There was some evidence that in years long past the old fence had been maintained jointly by the then adjacent owners. Defendant testified specifically that she did not know where the property line was. Other facts will be referred to in the discussion which follows.

The court specifically fixed a boundary line which placed the controverted 34-foot strip within defendant's property lines. While the question had not been raised by the parties, we first consider the question of our jurisdiction. In many cases this court has sonsidered whether or not title to real estate was involved in a constitutional sense, and the question has often been troublesome. Ordinarily, title is not involved where there is merely a dispute over the location of a boundary line. City of Marshfield v. Haggard, Mo., 300 S.W.2d 419. Here, however, the real controversy involves a specific 34-foot strip of ground; plaintiffs and defendant each claimed, respectively, that this was within their or her property lines, but plaintiffs also claimed title to that particular tract by adverse possession; the trial court made a specific finding on the latter question, and adjudicated the title to the strip in question. The situation is somewhat similar to that in the case of Klaar v. Lemperis, Mo., 303 S.W.2d 55, and we have determined that title to real estate is involved. See, also, Albi v. Reed, Mo., 281 S.W.2d 882.

Plaintiffs' first three points, though variously expressed, assert error in the admission of the testimony of County Surveyor Brock and of his survey; also, in permitting him to testify that he commenced his survey from 'a section corner.' The argument is that his basic statements were conclusions, that he had not established the corner from the government field notes, and that he had not complied with the requirements of Section 60.290 RSMo 1949, V.A.M.S., providing a means of establishing 'decayed or destroyed section corners,' sometimes referred to as lost corners. The plat of the addition in question is based upon the section corner of Section 27, 28, 33 and 34 in Township 22, Range 28 west. At this point it becomes necessary to outline, briefly, the testimony of Mr. Brock. He was the only surveyor who testified; he had made a survey for the purpose of locating this property line in 1954, but the exhibit showing the result of that survey was excluded upon the objections of counsel for plaintiffs. After hearing most of the evidence, the court continued the case to permit the defendant an opportunity to procure a new survey. Counsel for plaintiffs objected to this procedure, but the action taken was certainly within the legitimate limits of the court's discretion. Mr. Brock, therefore, testified on two occasions; he had been county surveyor for 8 years. The plat of his last survey was admitted. In substance, he testified: that he started at a corner which he 'knew' was a government quarter section corner; that he had previously made surveys from that corner, and that he had found other corners from it which checked properly with the 'field notes'; that this particular quarter corner was located two and one-half miles west of the section corner now in question; that he ran a line east four and one half miles to another corner which he knew, and where there was an established point, made his correction of the variation, and surveyed back 2 miles to where he found the section corner of Sections 27, 28, 33, 34; that he found the 'monument' of this section corner in a black top road, by digging down in the road; that this was a sandstone of stated size; that in locating the section corner he referred to the original government field...