Kunze v. Evans

• Decision Date: 22 December 1891
• Parties: KUNZE v. EVANS et al.
• Court: Missouri Supreme Court

18 S.W. 36

107 Mo. 487

KUNZE v. EVANS et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1891.

ADVERSE POSSESSION — CHARACTER OF OCCUPANCY — STRIP BETWEEN CITY LOTS.

In ejectment between owners of coterminous subdivisions of a lot of land in a city, plaintiff claimed under a conveyance describing his subdivision as being "about 29 feet" in width. Conveyances of the other subdivisions of the lot by metes and bounds demonstrated the fact that plaintiff's lot was only 27 feet in width. Plaintiff had always supposed and claimed that his lot was 29 feet wide, but had never been in the occupancy of nor claimed any of the two feet beyond the true boundary. Held insufficient to support a claim of title to such strip of two feet by adverse possession.

Appeal from circuit court, Cass county; J. W. SLOAN, Judge.

Action of ejectment by L. O. Kunze against T. D. Evans and another. From a judgment for plaintiff, defendants appeal. Reversed.

J. S. Wooldridge and H. C. Daniel, for appellant. Whitsitt & Jarrott, for respondent.

BRACE, J.

This is an action of ejectment for a strip of ground in lot 4, in block 2, in the original town of Harrisonville, in Cass county, instituted July 2, 1887. The plaintiff in his petition claimed 3 feet by 30 feet 6 inches. The case was tried by the court without a jury, and he obtained judgment for 2 feet 2 inches by 30 feet 6 inches of the land sued for, from which the defendants appeal. The parties are coterminous proprietors each of a subdivision of said lot, and the suit grows out of a dispute about the boundary line between them. The title of each is deraigned by mesne conveyances from Joel D. Campbell, who owned the whole of lot 4, but conveyed it in subdivisions. The following diagram will illustrate block 2 and the lot as thus conveyed:

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

The evidence tended to show that lots 4, 5, and 6, as originally platted and laid out, were of equal size, and that the whole length of the block from north to south, as actually built upon and occupied from the beginning, is 193 feet 5 inches, giving a width to each lot of 64 feet 5 2/3 inches, (say 64 feet 6 inches.) In January, 1845, Campbell conveyed to Eli Dodson the middle division of lot 4, describing its boundaries as "beginning 18 feet north of the north-east corner of lot 5, in block 2; running thence north 19½ feet; thence west 165 feet to the alley; thence south 19½ feet; thence east to the place of beginning." The Dodson subdivision, with one foot more on the south, subsequently acquired by his grantees and transmitted, making 20½ feet front, is the part of said lot the title to which is vested in the defendant by the record. On the 27th of December, 1846, Campbell conveyed to John Cummins the north subdivision of lot 4, describing its boundaries as "all that part of lot No. 4, in block No. 2, in the city of Harrisonville, north of Eli Dodson's line, which part of said lot is about twenty-nine feet, fronting the public square, and extends west back to the alley." The plaintiff has acquired the Cummins title to this part of said lot. The remaining subdivision on the south was afterwards conveyed by Campbell, in 1849, to S. G. Allen, described in the deed as "part of lot 4, in block No. 2, fronting on the street about 18 feet, and running back west the same width, the whole length of said lot, together with the store-house situated on the same." It will be observed in these deeds that the width of the lot is estimated at 66 feet 6 inches; that the Dodson deed, under which defendant claims, is the prior one, and fixes specifically the boundaries and quantity conveyed; that the quantity conveyed in the Cummins deed, under which plaintiff claims, is estimated, and the southern boundary of the land conveyed, established, by the Dodson line. Consequently, the lot in fact only fronting 64 feet 6 inches, after Dodson got his 19 feet 6 inches, 18 feet north of the south boundary of the lot, there remained for Cummins only 27 feet front, instead of 29 feet, as estimated, and the true line...