Klaar v. Lemperis, 45410

Decision Date10 June 1957
Docket NumberNo. 45410,No. 1,45410,1
PartiesMeredith KLAAR and Lucille Klaar, Respondents, v. Angelo LEMPERIS and Zella M. Lemperis, Appellants
CourtMissouri Supreme Court

Roy W. McGhee, Piedmont, Roy W. McGhee, Jr., Greenville, for appellants.

Roberts & Roberts, J. Richard Roberts, Farmington, for respondents.

HOLMAN, Commissioner.

Plaintiffs, Meredith and Lucille Klaar, and wife, and defendants, Angelo and Zella M. Lemperis, husband and wife, are the owners of adjoining tracts of land located in Iron County, Missouri. In this action the owners of each tract sought a judgment quieting title, injunctive relief, and damages. A trial before the court (a jury being waived) resulted in a judgment for plaintiffs. Defendants have duly appealed.

On February 4, 1950, plaintiffs purchased from Ernest Sutton the South Half of the Northwest Quarter of the Northeast Quarter of Section 17, Township 31 North, Range 4 East (and other lands). On July 30, 1954, defendants purchased from George Smith the tract of land described as the North Half of the Northwest Quarter of the Northeast Quarter, known as the Delaney Knight tract, containing 20 acres, more or less. It will be noted that these are adjoining tracts and, in the aggregate, make up the Northwest Quarter of the Northeast Quarter of Section 17. This litigation resulted from a dispute which arose concerning the location of the boundary between the lands claimed by each couple. In this connection it should be stated that if the issue herein simply involved the determination of the boundary between the tracts as they have been heretofore described, we would not have appellate jurisdiction, as title to real estate would not be involved. City of Marshfield v. Haggard, Mo.Sup., 300 S.W.2d 419. However, as we understand the pleadings and evidence, the actual dispute concerns a triangular tract of land (containing perhaps three or four acres) which lies north of Little Sulphur Creek, and that at least a part of this land lies within the tract of which plaintiffs are the record owners. Defendants claim title to that portion of the land by reason of the adverse possession of their predecessors in title. Since defendants sought a decree to the effect that they were the owners of certain land which plaintiffs claimed by reason of their record title, it will be seen that title to read estate is actually involved herein in a jurisdictional sense.

Charley Brewer bought the land now claimed by defendants on February 27, 1946. At that time there was an old rail fence along what appeared to be the south boundary of the tract. This fence ran from northeast to southwest with the meanderings of Little Sulphur Creek to a point, and thence west to the west line of the tract, thus leaving a small parcel of land north of that creek and south of the fence which undisputedly belonged to the tract now owned by plaintiffs. It is the contention of defendants that they own all of the land that lies north of the line upon which the foregoing fence existed.

Early in February 1950, plaintiffs decided to buy the land they now own but would not do so until a survey was made establishing their lines. Therefore, the then owner, Ernest Sutton, caused the county surveyor, Mr. Rich, to make a survey which purportedly established the boundary corners between the Sutton-Brewer lands. Throughout the trial defendants objected to evidence concerning the result of this survey for the reason that it was not made in accordance with the provisions of the statutes. Admittedly, the survey did not commence with a corner established by the Government, or, if lost, re-established as provided by statute. Sections 60.290, 60.300 RSMo 1949, V.A.M.S. The surveyor testified that he started from a corner he had established in a previous survey. Evidence of such a survey has been held to be of no probative force and, as a general rule, incompetent. Klinhart v. Mueller, Mo.Sup., 166 S.W.2d 519. In this connection it may be noted that Mr. Rich admitted that the corner from which he started was 200 feet north of the section line as shown by a survey made in 1931 by Mr. Scoggin, who was then county surveyor, which, according to the field notes in evidence, appeared (but is not clearly shown) to have started from a re-established Government corner. However, we have concluded that evidence concerning the instant survey was admissible for the limited purpose only of showing a boundary line, which plaintiffs contend was agreed upon by Sutton and Brewer and which they argue is binding upon the defendants herein regardless of the validity of the survey.

Charley Brewer apparently regarded the corners fixed by the Rich Survey as a conclusive establishment of the boundary between the two tracts and accepted it as the dividing line. About a month thereafter Brewer sold his tract to George Smith and pointed out the stakes driven by Mr. Rich as the line between these tracts. In 1952 or 1953 Smith and plaintiffs built a fence along that line. Mr. Smith testified that when he sold his land to defendants in July 1954 he told them the fence was the line. This was denied by Mrs. Lemperis. Defendants moved on their land in July 1954, and the following November began to assert their claim of ownership to the land lying between the new and old fences. That resulted in the filing of the instant suit a few months thereafter.

We will first consider the contention of defendants that they acquired title to the disputed land by reason of the adverse possession of their predecessors in title. We agree with that contention. At the outset we note that there is evidence to indicate color of title in defendants and their predecessors as the land has been rather consistently described as the Delaney Knight tract, and the abstract of title shows that when the land was conveyed to said Knight in 1872 a metes and bounds description was used which did not describe the south boundary as a straight east and west line, but described it (from west to east) as, 'thence due East to a branch, thence with the meanders of the branch running a northeast direction to the corner of said field fence.' While we cannot be certain, this description would appear to indicate a line such as the one followed by the old fence.

It would seem unnecessary to extensively recite the evidence relating to adverse possession. We think it sufficient to state that there is substantial undisputed evidence to the effect that a fence had been maintained along the line which defendants contend is the southern boundary of their tract at least since that land was purchased by Oscar Smith in 1906, and until the fence was partially destroyed by plaintiffs after the Rich Survey. It is apparent that that fence was regarded by all interested parties as the dividing line between the tracts. Throughout that period of time the disputed land was pastured and farmed by the owners of the north tract and used generally for the purposes for which it was suited. During that period of almost 50 years there is no evidence that any owner of the south (plaintiffs') tract used the land or made any claim to it. Under these circumstances we hold that Oscar Smith acquired title to said land by adverse possession long before he conveyed the same to Charley Brewer in 1946. Sanderson v. McManus, Mo.Sup., 252 S.W.2d 351.

In connection with the foregoing we think it should be stated that Charley Brewer's ready acceptance of the line determined by the Rich Survey was a rather strong indication that he was not holding the land adversely. His conduct would seem to indicate that he was not claiming to the old fence but only intended to claim to the true line regardless of where the fence was. However, since title had already been acquired by Oscar Smith, who conveyed it to Brewer, the fact the latter did not continue to hold...

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13 cases
  • Hanna v. Nowell
    • United States
    • Court of Appeal of Missouri (US)
    • December 19, 1959
    ...C.J.S. Estoppel Sec. 72b, p. 275; 19 Am.Jur., Estoppel, sec. 34, p. 634; Commerce Trust Company v. Weed, Mo., 318 S.W.2d 289; Klaar v. Lemperis, Mo., 303 S.W.2d 55; Mills v. Taylor, Mo., 270 S.W.2d 724, and cases cited at loc. cit. 729; State on inf. of McKittrick, ex rel. City of Californi......
  • Ball v. Gross
    • United States
    • Court of Appeal of Missouri (US)
    • March 28, 1978
    ...339 Mo. 385, 96 S.W.2d 607, 615, 106 A.L.R. 1169 (1936); Commerce Trust Company v. Weed, 318 S.W.2d 289, 303 (Mo.1958); Klaar v. Lemperis, 303 S.W.2d 55 (Mo.1957). The trial court properly found for plaintiff on defendant's counterclaim. The judgment in a suit to quiet title pursuant to Rul......
  • Grimes v. Armstrong
    • United States
    • United States State Supreme Court of Missouri
    • July 8, 1957
    ...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 Plaintiffs' first three......
  • Midwestern Machinery Co. v. Parsons, 8341
    • United States
    • Court of Appeal of Missouri (US)
    • December 18, 1964
    ...upon Midwestern's subsequent conduct. Mickelberry's Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731, 739(10); Klaar v. Lemperis, Mo., 303 S.W.2d 55, 59(10); 31 C.J.S., Estoppel, Sec. 71a at 432. He who asserts an estoppel has the burden of proving it, 7 and every essential element of......
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