Krumm v. Streiler

• Court: Missouri Supreme Court
• Writing for the Court: HOLLINGSWORTH
• Citation: Krumm v. Streiler, 313 S.W.2d 680 (Mo. 1958)
• Decision Date: 09 June 1958
• Docket Number: No. 46330,No. 1,46330,1
• Parties: Frank KRUMM, Appellant, v. Wallace STREILER, Respondent

Page 680

313 S.W.2d 680

Frank KRUMM, Appellant, v. Wallace STREILER, Respondent.

No. 46330.

Supreme Court of Missouri, Division No. 1.

June 9, 1958.

J. O. Swink, Farmington, for appellant.

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

HOLLINGSWORTH, Presiding Judge.

This case arises out of a dispute between plaintiff and defendant as to the location of the boundary line between plaintiff's farm lying to the north of that line and defendant's farm lying to the south thereof, both in Perry County, Missouri. Plaintiff sued to quiet title to his entire farm, allegedly containing 61.41 acres, in which he set forth claim of ownership in fee simple to a specifically described tract. In reality, however, the only portion of the land in dispute is a narrow, irregular strip of land adjacent to a creek meandering in a general east-west direction in close proximity to the boundary line respectively asserted by each of the parties. The petition prayed ascertainment of title, a decree adjudging plaintiff to be the fee simple owner of the farm as described in his petition, and a permanent injunction against defendant from asserting any right or title whatever to any portion thereof. Defendant, by his answer, neither affirmed nor denied plaintiff's ownership of land described in the petition, but asserted that there was, and for more than fifty years had been, a fence between their respective farms and that he and his predecessors in title had openly and exclusively possessed and asserted under hostile claim of ownership title to all of the land to the south of said fence and thereby had acquired title by adverse possession to all of the land south of said fence, and prayed a decree to the effect and an injunction against plaintiff from asserting ownership thereof.

Trial of these issues to the court resulted in the court's finding the facts to be as alleged in defendant's answer and decreeing defendant to be the owner of the land south of said fence, specifically describing it as set forth in the deed received by defendant from his immediate predecessor in title, as corrected by a subsequent deed. Plaintiff has appealed. Title to real estate is involved, vesting this court with jurisdiction of the appeal. Klaar v. Lemperis, Mo., 303 S.W.2d 55, 56; Grimes v. Armstrong, Mo., 304 S.W.2d 793, 796.

Plaintiff's claim of title to the land described in his petition is founded upon the deed executed and delivered to him in November, 1923, by his immediate predecessor in title, William G. Dippold. In 1955, at the instance of plaintiff, Raymond Donze, a qualified surveyor, made a survey and prepared a plat of plaintiff's farm. That survey and plat were made by Donze after examination of plaintiff's deed, the survey and conveyance records of Perry County and from information gleaned from plaintiff and others, especially Albert Courtois, whose farm lay to the east of plaintiff. The plat of that survey, Exhibit 'A', was introduced in evidence by plaintiff and a photographic copy thereof is here shown Exhibit 'A'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The tract marked 'F. Krumm' in the northwest corner of the plat shows the land claimed by plaintiff. The farm of Albert Courtois is shown in the northeast corner of the plat. Defendant's farm lies to the south of plaintiff's and Courtois' farms. Defendant acquired his farm from his father, August Streiler, in 1938, who had acquired it from defendant's uncle, Maximillian Streiler, by deed dated September 28, 1893.

According to the plat, the south line of plaintiff's farm extends along the courses from Points 3 to 11, inclusive, thereby placing plaintiff's southern boundary line (the line in dispute) generally south of the creek and somewhat deeply to the south of the creek (Points 9-11) as the line approaches the west boundary line common to both plaintiff's and defendant's farms. It was defendant's contention and the court found that the fence which 'divides the lands owned by the plaintiff and the defendant runs in an east and westernly direction along and on the north side of the creek * * *.' Hence, it is apparent that the essential matter for review is whether the credible evidence reasonably establishes the finding and judgment of the trial court. In this connection, it must be stated that due to the manner in which the testimony was elicited some of it has no meaning whatever to a reviewing court. Counsel propounded many of their questions and the witnesses answered those questions by pointing out on the plat unidentifiable points, areas, fences, fields, bluffs, hills, a spring, 'pile of rocks', et cetera, or by mere reference to them in general terms. Without the aid of some record identification of the points or location of the places or objects to which counsel and the witnesses referred, the purport of such evidence cannot be understood. However, aided by the plat, we shall set forth such of it as is reasonably susceptible of meaning and is pertinent to the issue of adverse possession.

Albert Courtois, a witness in behalf of plaintiff, testified: He was present when plaintiff and Mr. Donze made the survey shown by the plat and assisted in the location of certain points. The survey began at the northeast corner of Courtois' farm, evidenced by an iron pipe placed there during a former survey. The line thence ran southwardly to a point, which Mr. Courtois estimated to be the southeast corner of his land, as a starting point. The surveyor then proceeded westward, surveying the line between Courtois and plaintiff on the north and defendant on the south. On cross-examination, the witness admitted that the southeast corner of his farm, as shown by his deed, was supposed to be on the north bank of the creek, but that inasmuch as the bank had eroded throughout the years the stake set at Point 1 of the survey was actually placed in the bed of the creek, as the estimated point of beginning and that the other points were then run as shown on the plat. The witness further admitted there was a fence between plaintiff's farm and defendant's farm, described by the witness as 'Krumm's fence'. That fence was 'on the north side (of the creek) all the way up', and had been so located ever since the witness came to his farm thirty-five years ago. The witness further admitted that in an undefined area near the point where the boundary line between plaintiff and defendant joined their common west boundary line there was a 3 1/2 acre tract south of the creek which defendant and his father had cultivated ever since the witness came to his farm. The witness further testified that there was a fence enclosing the 3 1/2 acre tract and that formerly there had been a fence on the creek bank along the north side of the tract, but it had rotted down thirty years ago. The fence along the north side of the creek had remained and had been 'kept up' during all of those years.

Plaintiff testified: The fence along the north side of the creek was on his property and he never considered it the boundary line between him and defendant. At one time, defendant's father had maintained tained a fence south of the creek and portions of it were still visible. Plaintiff admitted, however, that the Streilers had always cultivated the 3 1/2 acre tract up to 'nearabout' the south creek bank and that the line surveyed by Donze as plaintiff's south line bisected that tract near 'its middle'. Plaintiff further admitted that the fence on the north side of the creek is 'just up on the bank on the north side' of the creek and runs 'reasonably close to the creek all the way'; and that there had been no fence on the south side of the creek other than that enclosing the 3 1/2 acre tract since plaintiff had acquired his farm in 1923. Plaintiff also admitted that in 1950 he showed Harry Diemund a point on the north side of the creek as being the point of the southwest corner of his farm, but explained that 'it was all caved out' and he 'only thought it was there'; and that the point shown Diemund lay 55 feet to the north of the point shown on Donze's survey.

Plaintiff further testified on cross examination:

'Q. Everybody down there understood all through that community that that creek was the line ever since you've lived there; that's been notorious, everybody has heard that, haven't they? A. Well, they just called that the line, the dividing line; that's what they called it.

'Q. And that's been ever since you lived there for thirty-five years? A. Yes, sir.

'Q. And was a long time before you lived there as far as you know? A. As far as I know.'

The following testimony was adduced in behalf of the defendant:

Leonard Merkel, a farmer, aged 52 years, testified: He was born and has lived all of his life on a farm immediately west of plaintiff. The Streilers farmed the 3 1/2 acre tract above mentioned ever since he knew the land and before his time had cut logs and ties from it. There has been a fence 'just on the north side of that creek' between plaintiff and the Streilers for the past thirty years; and never prior to the instant suit had he heard of plaintiff's claiming any land to the south of it.

Harry Diemund, a farmer aged 38 years, testified: He lives north of the parties to this action and is acquainted with their farms. In 1950 or 1951, plaintiff pointed out to the witness a place on the north bank of the creek as the southwest corner of plaintiff's farm and, about 200 feet further to the east, plaintiff pointed out to him another corner 'right there north of the creek in those rocks.' There is and has been a fence along the north side of the creek as long as witness can remember.

John Hansen, aged 67 years, testified: He has lived in the community all of his life and is acquainted with the Krumm and Streiler farms. The 3 1/2 acre tract was cleared by Streiler's tenant all the way to the creek in 1908 and Streiler has farmed it ever since. At one time there was a...