Kronenberger v. Hoffner

• Decision Date: 31 March 1869
• Citation: 44 Mo. 185
• Parties: DOMINIQUE KRONENBERGER, Respondent, v. FREDERICK HOFFNER and BENJAMIN F. HICKMAN, Appellants.
• Court: Missouri Supreme Court

44 Mo. 185

DOMINIQUE KRONENBERGER, Respondent,

v.FREDERICK HOFFNER and BENJAMIN F. HICKMAN, Appellants.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Jones & Hickman, for appellants.

Bakewell & Farish, for respondent.

BLISS, Judge, delivered the opinion of the court.

The controversy arises from a disagreement in regard to a boundary between the plaintiff and defendants, and the plaintiff brings his action for the possession of such portion of the property in dispute as will decide the location of the true line.

In 1853 the St. Louis University laid off a portion of a tract land owned by it into a subdivision called “College Farm,” and the plat was duly recorded. The following diagram shows that part of the subdivision that embraces or affects the question of the disputed boundary:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The plaintiff owns lot No. 4, and the defendants lot No. 5, and the dispute involves the location not only of the division line between these lots, but of all the lines running from Bellefontaine road to Orchard street. The defendants claim that these lines were originally run and platted at right angles with Bellefontaine road, according to the black lines in the diagram, and should not now be disturbed, while the plaintiff, having had this part of the subdivision resurveyed by the county surveyor, claims that they can not run at right angles with this road, but must run as indicated by the dotted lines upon the diagram, varying between five and six degrees; that the true line cuts the house of defendants; and the petition is for that part of the house south of the intersection of the line.

The plaintiff, upon the trial, submitted in evidence the deed of the university to R. W. Wells (dated June 18, 1854) of said lot No. 4, by the following description: “Lot No. 4 in the subdivision of said tract, as per plat recorded in the recorder's office of St. Louis county, and described as follows: beginning at a point in the western line of the Bellefontaine road, distant 360 feet 9 inches southwardly from the northern line of the tract; thence westwardly at right angles to the said Bellefontaine road, 436 feet along the southern line of lot No. 5 to Orchard street; thence southwardly along the eastern line of Orchard street 200 feet to a point; thence eastwardly at right angles to said Orchard street 436 feet to the Bellefontaine road; thence northwardly along the western line of the Bellefontaine road 200 feet to the point of beginning--said lot No. 4 containing two acres.” Also, the deed of the sheriff, upon partition among the heirs of Judge Wells, of said lot 4, to C. Garrell, made in June, 1866, and described it as “lot No. 4 of the College Farm, containing two and one-tenth acres, bounded east by the Bellefontaine road, west by Orchard street, south by lot No. 3, and north by lot No. 5;” also a deed of the lot, of April 10, 1867, from Garrell to the plaintiff, describing it as “lot No. 4 of the College Farm, a plat of which is on record in the office of the recorder of deeds for St. Louis county, said lot containing two and one-tenth acres, more or less, and is bounded east by the Bellefontaine road, west by Orchard street, south by lot No. 3 of said College Farm, and north by lot No. 5 of said College Farm, and is part of the real estate acquired by the party of the first part by deed recorded,” etc.

The plaintiff introduced as a witness the county surveyor, Mr. J. Pitzman, who testified that in May, 1867, he surveyed the lot for the plaintiff, and made a plat; that he placed the northeast corner of the lot 360 feet 9 inches from O'Fallon's corner, because “that is the distance called for in the plat of the College Farm, and also in the title deeds shown me by Mr. Kronenberger. I was governed by the stated distance alone.” Considered himself bound by the stated distance; introduced his plat and said that it included a portion of Mr. Hickman's house in lot 4; and, on cross-examination, explained further that he had before surveyed lot No. 1 for the plaintiff; that upon the recorded plat of College Farm, the lines between the several lots, 1 to 6, seem to be at right angles with Bellefontaine road and Orchard street; that there was a fixed monument at the southwest corner of lot 6 and the northwest corner of lot 5; that the line of division fixed by him was not at right angles with the road, but diverged as much as four degrees; that a perpendicular from Orchard street, 161 feet 3 inches from the northwest corner of lot 5, would strike the Bellefontaine road a considerable distance south of the northeast corner of lot 4, as he placed it, and might clear Hickman's house. He further testified that there was a fence on the south side of College avenue, and that by measuring from O'Fallon's corner on Bellefontaine road, and locating the fronts of the several lots as he has done, there would be some thirty feet surplus on College avenue; and says that when he first surveyed lot 1 for the plaintiff there was a fence between lots 1 and 2, striking Bellefontaine road at right angles, and considerably south of where he located the line.

In the foregoing diagram, where the lines in the plat of Mr. Pitzman varied from those of the original plat, as claimed by the defendants, they are indicated by dotted lines. The defendants introduced H. W. Leffingwell as a witness, who testified that he was agent for the university in the sale of the lots; that Cozzens and O'Flaherty made the survey and map (exhibiting it); said it was the original map used at the sale; that the first sale was on the 11th of May, 1853, when he sold lots 1, 5, and 6; that there were no improvements on lot 4, but were on lots 5 and 6; that there was a fence immediately south of the house on lot 5, running to Bellefontaine road, that was pointed out as the south boundary of lot 5; that “the line between lots numbered 4 and 5 ran south of the house, and it was so stated to the purchasers at the time.”

W. H. Cozzens, also, was called as a witness, and testified that he and his partner surveyed and subdivided the College Farm; that he personally directed the mode of subdivision; that the corners definitely fixed were the northeast corner on the Bellefontaine road, the next corner west (now the northeast corner of lot 6), and the southwest corner of what is now lot 6; also the line of Bellefontaine road with its angle in lot 5. After he gave the directions the survey was made by his partner, Mr. O'Flaherty. “I know where the line of division between lots 4 and 5 was. It ran just south of the house. There was, at the date of the sale, in May, 1853, a fence just south of the house in lot No. 5, which fence was on the line between 4 and 5. It was so announced at the sale, and so understood. I attended the sale. This large map was then in Mr. Leffingwell's hands. The sale was on the premises. All the improvements were announced to be in lots 5 and 6. I gave directions so as to have the house on lot 5, and it was so surveyed.” The witness testifies to a recent survey at the instance of the defendants; goes into detail of his operations, his starting points, etc., to fix the location of the line in dispute; is positive that the line, according to all the calls of the deeds, should be south of Hickman's house, and at right angles with the road; says that the mistake was in putting down in the original plats the length of the front line of lot 6--it should have been over thirty feet longer; his recent survey makes it thirty-five feet longer than on the maps, though the proportions of the platting are correct; and gives his opinion as to what calls in the deed should control.

Mr. Wells, son of R. W. Wells, testified that he was present at the partition sale, and that the sheriff announced that...