Harris v. Consolidated School Dist. No. 8 C, Dunklin County

• Decision Date: 09 November 1959
• Docket Number: No. 46595,46595
• Parties: Vander HARRIS, Appellant, v. CONSOLIDATED SCHOOL DISTRICT NO. 8 C, DUNKLIN COUNTY, Missouri, a corporation, Respondent.
• Court: Missouri Supreme Court

Page 646

328 S.W.2d 646

Vander HARRIS, Appellant, v. CONSOLIDATED SCHOOL DISTRICT NO. 8 C, DUNKLIN COUNTY Missouri, a corporation, Respondent.

No. 46595.

Supreme Court of Missouri, En Banc.

Nov. 9, 1959.

Bradley & Noble, John W. Noble, Charles M. Cable, Kennett, Attorneys for Plaintiff.

Dalton & Treasure, John Hall Dalton, Harold B. Treasure, Kennett, Attorneys for Respondent.

EAGER, Judge.

On March 27, 1954, plaintiff filed suit to quiet title to two acres of land in the southeast corner of the S 1/2 of the NE 1/4 of Section 30, Twn. 18 N., R. 9 East in Dunklin County; the land was also described by metes and bounds, in feet. The petition was formal. Defendant is the successor to a common school district known as School District No. 4, Twn. 18, R. 9, Dunklin County. Although the date and other details of the transfer are not shown, no question is raised as to the propriety of the succession by defendant to the rights and title of the former district; we shall, therefore, use the word 'District' as referring indiscriminately to either district. The suit involves title to the land, regarded as separate tracts of one acre each, and to a brick school building. Defendant filed an answer denying plaintiff's title, asserting its own, and pleading the Statute of Limitations; in a counterclaim it asserted its title affirmatively and prayed an adjudication of title; it further alleged that the improvements remained personal property. By reply to the answer, and answer to the counterclaim, plaintiff took issue with all affirmative allegations, and asserted title through a quitclaim deed from the heirs of W. G. and Amanda Petty; certain other matters were alleged which, in so far as necessary, will be mentioned later. The trial court found title in the defendant, as will appear more specifically later.

By warranty deed filed for record on May 10, 1898, W. G. Petty and Amanda Petty, his wife, conveyed to the trustees of the school district 'one acre out of the southeast corner' of the 80-acre tract in question; the deed also described the land so conveyed, erroneously, by metes and bounds as a tract 108 feet, 9 inches x 108 feet, 9 inches (approximately 100 feet 'shy' in each direction); however, since the parties have consistently considered the controversy as one involving that full (south) acre and have so described it, we shall give no further consideration to that error. In the deed from the Pettys the following clause appeared: 'This property to remain the property of the parties of the second part so long as they use it for a school site, and when they fail and cease using it it is to revert back and the title is then to be placed to W. G. Petty and his assigns.' A frame schoolhouse was constructed and occupied until 1922, when a new brick schoolhouse replaced it. The school grounds had been fenced, at least on the west and north. A public road ran along the east side of the grounds, and a private road along the south side. Shortly after the new building was constructed, Mr. Petty's fence along the north side of the school grounds was moved further north, so as to enlarge the school grounds to two acres; presumably Mr. Petty did this. There was no evidence of any negotiations at that time, or showing what further may have occurred. Thereupon, the school district constructed two brick toilets on that north acre, and continued to use it as a part of the schoolyard until 1951. In the 1930's a 'cook shack' and improvised dining room were constructed wholly or partly on this north acre and these buildings were used in a school lunch program. Various playground equipment was installed, such as slides, a basketball court, etc., some of which was on the south acre and some apparently on the north. It was shown without controversy that the school district continuously used the whole tract from about 1922 until classes were stopped in the spring of 1951.

By deed dated January 1, 1934, plaintiff Vander Harris bought the remaining 78 acres of the 80-acre tract and moved there. The description in his deed contained the following clause: 'less two acres in the southeast corner thereof for school, * * *.' A deed of trust executed by the Pettys in 1925, and a trustee's deed thereunder in 1932 contained similar exceptions, as did also deeds of trust from Harris and his wife in 1934 and 1940. A warranty deed executed by W. G. Petty and his wife, filed August 22, 1925, excepted 'two acres in the southeast corner formerly conveyed for school purposes * * *.' Harris has lived just west of the schoolhouse on the 78 acres since 1934.

Since the cessation of classes, about June 1, 1951, the pupils have been transported to the school of defendant at Senath. Such procedure has become an integral part of the contemporary history of rural Missouri. The building has since been used for the storage of miscellaneous materials, such as lumber and windows removed from other buildings, and perhaps seats or benches; the original blackboards, stoves, some seats, and a desk or two remained. Material has been moved in or out as deemed necessary. There was testimony that the building had deteriorated, with windows out, paint needed, and some damage from termites apparent. There was also testimony that the directors of defendant had discussed, as recently as within the year preceding the trial, the possibility of using the building again for classes, and the fact that it was their 'last remaining good building'; certain other buildings had been disposed of. One or more directors testified that the board had that possibility in mind in keeping the building, and that it would not keep it permanently for storage only. It further appeared that the board had never applied for a payment of $1,000, which would be payable after abandonment and disposition of the building.

After suit was filed, and about July, 1955, the parties agreed that one Boyd Smith might use on room of the schoolhouse for a grocery on a month-to-month basis, applying the first rentals of $25 per month to the repair of the building or of a portion of it. The arrangement was subject to termination on notice. Apparently Smith so occupied one room to the time of trial and made some repairs. It was further agreed, orally, that evidence of such occupancy should not be considered in the litigation. Thereafter two forms of a written agreement were prepared, but neither was signed by all the parties. Counsel for plaintiff seem to feel that the failure of the defendant to so sign released the plaintiff from the agreement last mentioned; in any event, evidence of this use came into the case, as did both drafts of the proposed written agreement; each of those forms confirmed the oral agreement that the 'lease' should not be construed as an admission and should not be used in the litigation.

A memorandum opinion was filed by the trial court; on motion, it was ruled that this should be 'no part of the decree.' In the decree itself the court found that, as of the date of filing suit, the south acre was being used as a 'school site' and for school purposes, that it had not been abandoned, and that title thereto had not then reverted. It adjudged title thereto to be in defendant, subject to the reverter clause of the Petty deed. It further found and adjudged that defendant had acquired fee simple title to the north acre by adverse possession.

The case was tried without a jury. The title to the south acre depends, essentially, on whether or not defendant has abandoned the property as a school site; title to the north acre depends on whether defendant's use was adverse or merely permissive. Plaintiff also insists that we should determine, independently of the above questions, whether defendant may now remove the school building and whether plaintiff is the owner of the reversionary interest.

There are not many cases in Missouri involving the abandonment of school sites. In the case of Fuchs v. Reorganized School Dist. No. 2, Gasconade County, Mo., 251 S.W.2d 677, cited by plaintiff, land was conveyed for the purpose of maintaining a 'public schoolhouse,' but there was no reversion clause; it was held that the conveyance was in fee simple, without limitation or condition, and that the purpose stated was a mere expectation. Apparently the case is cited for its reference to the fact that the recital of a nominal consideration of One Dollar (as here) may properly be considered in determining the grantor's intent. In the case of Board v. Nevada School District, 363 Mo. 328, 251 S.W.2d 20, 21 (cited and relied on by both parties), the deed recited that the land was conveyed '* * * for a school house site and whenever it is abandoned by the directors and ceases to be used for that purpose the title shall immediately revert to the grantors herein.' Plaintiffs, as heirs, claimed title by abandonment and reverter. No classes had been held in the building since May 1, 1950; the minutes did not show any affirmative abandonment, and certain '4H' meetings had been held in the building. The steps of the building and a portion of the back porch had been taken away for use elsewhere. The court held: that the deed conveyed a fee simple 'determinable,' wherein the grantors created a possibility of reverter, dependent upon future uncertain events; that the plaintiffs had the burden of proving abandonment; that the facts were 'wholly insufficient' to establish a reverter by abandonment. In part, the court said, 251 S.W.2d loc. cit. 25: 'We do not construe the words, 'ceases to be used for that purpose', to mean a mere temporary cessation of the school district to conduct a school on the property. The property did not cease to be used for a schoolhouse site, merely because no school was conducted on the property from May 1, 1950 to May 10, 1951. The matter involves intention as does the matter of abandonment. See, Tillman v. Melton, supra , 165 S.W.2d 684, 687, and cases cited therein. * * * In the case of ...