Klinhart v. Mueller

• Decision Date: 01 December 1942
• Docket Number: 37689
• Citation: 166 S.W.2d 519
• Parties: KLINHART et al. v. MUELLER et al
• Court: Missouri Supreme Court

166 S.W.2d 519

KLINHART et al. v. MUELLER et al

No. 37689

Supreme Court of Missouri, First Division

December 1, 1942

John H Keith, of Ironton, for respondents.

Samuel Richeson, of Potosi, and W.R.J. Hughes, of Ironton, for appellants.

OPINION

BRADLEY, Commissioner.

Action in two counts to determine title and in ejectment. The trial court found for plaintiffs on both counts and defendants appealed.

The land in question consists of 3.20 acres in Iron County, and is described in the petition as follows: 'Beginning at the northeast corner of lot 4 of the northeast quarter of section 2, township 33 north, range 4 east; thence west 9.50 chains to the east marginal line of Lake Killarney; thence in a southeasterly direction along said east marginal line of said lake as follows: South 41 degrees east 2.40 (2.04) chains, south 36 degrees east 1.90 chains; south 41 degrees east 93 links to an intersection with a barbed wire fence thence east 2.04 chains to a red oak tree 14 inches in diameter, the terminus of said barbed wire fence; thence east 4.46 chains to the line dividing sections 1 and 2, township 33 north, range 4 east; thence north along said line 4.00 chains to point of beginning, containing 3.20 acres, all in the northeast corner of lot 4 of the northeast quarter of section 2, township 33 north, range 4 east.'

In order to better appreciate the situation, we here reproduce plaintiffs' exhibit A, which is as follows: [SEE ILLUSTRATION IN ORIGINAL]

The part on the exhibit similar in form to a trapezoid, in the northeast corner of lot 4, is the land in question. It is conceded that defendants own tract 2, and that plaintiffs own lot 4, but defendants contend that the land in question 'is not a part of lot 4', and say that if it is a part of lot 4, then they contend that they 'have been in possession of it for more than ten years before the commencement of this suit.'

As appears thereon, exhibit A is the plat made by W. L. Scoggin, country surveyor of Iron County, from his survey in 1936. As a witness for plaintiff, Scoggin testified that he made a resurvey November 6, 1939, 'to retrace and find the southeast corner of tract 2 and the northeast corner of lot 4, which are the same in point'; that W. D. Kendall and Earl Parker, former county surveyors, assisted (they acted as chainmen) in the last survey; that when he made the original survey he 'found a cabin on the land in litigation, south of the north line of lot 4, about 150 feet south'; that the land in question is 'bounded on the north by the north line of lot 4, and on the east by the east boundary of the northeast quarter of section 2. The south and west boundary of the land in litigation is partly Lake Killarney. * * * The northwest corner of lot 4 would be in Lake Killarney, and also the southwest corner of tract 2'; that 'at the southern boundary of this land in litigation there was a fence about two chains long.' The fence was about four chains south of the north line of lot 4, according to the Scoggin survey.

The beginning point, on the Scoggin survey, of the description of the tract in question is the southeast corner of tract 2 or the northeast corner of lot 4, and to arrive at this point Scoggin said that he commenced the survey 'at the northwest corner of tract 6 of the Murdock-Crumb subdivision of the northeast quarter of section 2, township 33 north, range 4 east', and ran 'thence south to the southeast corner of tract 2'; and 'then ran west to Lake Killarney on the northern boundary of lot 4.' Scoggin also testified that at the southeast corner of tract 2, or the northeast corner of the land in question, as he located it, he found a stake and stones; that Mr. Klinhart, one of the plaintiffs, pointed out the stake. 'Q. You just took what Mr. Klinhart showed you for the stake and stones for this point; you did not have any information from the Government field notes? A. No, sir.' Scoggin said that he 'took the stake and stones as the corner, for the bearing trees indicated that was the corner from the way they were marked. I had no notes or any survey to indicate they were bearing trees.'

W. D. Kendall, a former county surveyor of Iron County, and who, as stated, acted as chainman in the second Scoggin survey, testified that he assisted the Murdock-Crumb Company in making survey 'with reference to tract 2' in 1910 or 1911. 'Q. In making this survey, did you know of your own knowledge whether or not any special corner as shown by the Government field notes of the survey by the Government was found? A. Yes, sir. * * We made corners by putting down a stake and piling stones around it at each of the tract corners. I have several times since then surveyed that and found those same corners. The last time was with Mr. Scoggin, a month ago. Q. Did you find those corners that you helped to establish when the original Murdock-Crumb Company's survey was made? A. I did.'

Earl Parker, also a former county surveyor of Iron County, and who also acted as chainman in the second Scoggin survey, testified that in 1925 or 1926 he surveyed tract 2 for Mr. Schroeder, defendants' grantor of tract 2, 'and established the north boundary, the east boundary and that portion of the south boundary that does not extend into the lake. The south boundary would also be the north boundary of lot 4. There was evidence of a corner, a pyramid of stones about sixteen inches high and a stake driven in the ground. * * * About three weeks ago I rechecked that survey with Mr. Scoggin. There was a similarity in the appearance of the southeast corner of tract 2 to what it was in 1925-1926. My survey was based on the Murdock-Crumb survey of tract 2.'

William Schroeder and wife leased tract 2 to the defendants November 26, 1926, and the lease recites that it covers 20 acres. September 13, 1930, the Schroeders conveyed the tract to defendants. William Schroeder, as a witness for plaintiffs, testified that the defendants 'talked about leasing the land from me in 1926 and I had Earl Parker, county surveyor, survey the land and defendants were with me at times. We established the boundaries of this land in dispute. In 1929 they talked about buying the land; we went over the lines again. I had both of them with me. Until today I do not know whether the cabin is east or south of the line; it is toward the dam; I would call it south or east. The fence was put there by Klinharts in 1922, '23 or '24 to stop people from going to the dam. When I had the land surveyed I pointed to this fence and said, 'This is not the line, this is Klinharts' land.' That was before I had Parker make the survey. I claimed the line Earl Parker surveyed for me. I told the defendants that was Klinharts' fence. They put up a fence there to stop people going to the dam. I told them I knew the Klinharts did not know where their lands were.'

Baarent Tenbroek, for plaintiff, testified that he 'leased Shepard Mountain Lake from Mr. Schroeder and the Muellers (defendants) in 1933 and 1934', and that 'in July of 1934, Clara Mueller said, 'We...