Mothershead v. Milfeld

• Decision Date: 08 January 1951
• Docket Number: No. 41608,No. 1,41608,1
• Citation: 236 S.W.2d 343,361 Mo. 704
• Parties: MOTHERSHEAD v. MILFELD et ux
• Court: Missouri Supreme Court

Page 343

236 S.W.2d 343

361 Mo. 704

MOTHERSHEAD v. MILFELD et ux.

No. 41608.

Supreme Court of Missouri, Division No. 1.

Jan. 8, 1951.

Rehearing Denied Feb. 12, 1951.

Dearing & Matthews, M. C. Matthes, Hillsboro, for appellants.

Samuel McKay, DeSoto, Samuel Richeson, Potosi, for respondent.

VAN OSDOL, Commissioner.

Plaintiff-respondent J. Lee Mothershead and Alta Mothershead, his wife, instituted this action to quiet title to Lot 8 of Block 3 of the City of DeSoto. By Count II of their petition, plaintiffs declared in ejectment to recover possession of Lot 8; and by Count III plaintiffs stated a claim for damages alleged to have been occasioned by defendants' careless excavation whereby a building on Lot 8 was allegedly deprived of its lateral support and was thus caused to fall.

Alta Mothershead, the plaintiff wife, has died since the institution of the action, and the plaintiff husband has prosecuted the action as sole owner of Lot 8.

While the action was instituted to quiet title, in ejectment, and for damages to Lot 8, Block 3 of the City of DeSoto, the actual controversy (at least the actual controversy as raised by the issues of Counts I and II) involves a narrow tract of land approximately 105 feet long, 1.70 feet wide at the east end thereof, and 2.69 feet at the west end. The north line of the narrow tract of land coincides with the north side of a concrete foundation wall recently constructed by defendants. Plaintiff asserts ownership of this narrow tract upon which the foundation wall has been constructed, as part of Lot 8, the record title to which Lot 8 is concededly in plaintiff. On the other hand, defendants contend that the narrow tract is a part of Lot 7, the record title to which Lot 7 is concededly in defendants. The parties, plaintiff and defendants, acquired their respective properties in 1944. When plaintiff bought Lot 8, there was a building on the lot. In years gone by, the building was the 'Air-Dome Theatre,' and more recently the building was reconstructed and used by A. R. Ellis, plaintiff's predecessor in title, in his garage business. We infer this is the building alluded to in Count III of plaintiff's petition. Hereinafter, we will refer to this building as the 'Ellis building.'

Defendants, by their answer to Counts I and II, stated their claim of title by adverse possession and asked for title relief. Defendants also alleged that the north line of the land occupied by them has been recognized for a long period of time as the true boundary line between Lot 7, now owned by defendants, and Lot 8, now the property of plaintiff.

By stipulation of the parties the action was tried upon Count I of the petition, it being agreed that the issues of Counts II and III might be tried at a later time. The trial court found the issues of Count I in favor of plaintiff and rendered judgment accordingly, from which judgment defendants have appealed.

Although the trial court did not specifically order a separate judgment upon the separate trial of the issues of the claim as stated in Count I of plaintiff's petition, yet, by stipulation of the parties, tacitly approved by the trial court, the issues of the claim stated in Count I were separately tried, a separate judgment was entered, and a motion for a new trial was filed and overruled and this appeal perfected. We may consider the separate judgment entered on Count I of plaintiff's petition to have been a final judgment as if specifically ordered for the purposes of an appeal within the meaning of Section 126, Civil Code of Missouri, Laws of Missouri 1943, p. 353, at page 390, Mo.R.S.A. Sec. 847.126; and Supreme Court Rule 3.29. Title, evidencing ownership, is the issue as raised by plaintiff's claim as stated in Count I of the petition and in the answers filed by defendants to Counts I and II. Title is a supporting or underlying issue in plaintiff's claim for possession as stated in Count II; and title evidencing ownership with right to possession may be a supporting issue in plaintiff's claim for damages as stated in Count III. See Cantrell v. City of Caruthersville 359 Mo. 282, 221 S.W.2d 471; Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142. It was therefore advantageous to the parties litigant and to the trial court that title (the issue of Count I, a supporting or underlying issue in Count II and possibly in Count III) should be finally adjudicated by a separate judgment entered by the trial court to the examined in the review of the cause on the instant appeal.

The trial of the cause was without the services of a jury, so we will review the case 'as in suits of an equitable nature.' Section 114, Civil Code of Missouri, Laws of Missouri 1943, p. 387, Mo.R.S.A. Sec. 847.114.

Plaintiff did not undertake to substantiate his asserted ownership by proof of title by adverse possession. He does not contend he owns the controverted narrow strip of land regardless of whether or not it is contained within his Lot 8. As he stated from the witness stand, plaintiff claims 'where the (Ellis) building was, from the north wall to the dividing line between Lots 7 and 8. That is all that belongs to me.' See Brummell v. Harris, 148 Mo. 430, 50 S.W. 93.

In undertaking to demonstrate his title, plaintiff introduced the testimony of a witness, a surveyor of admitted qualifications. The surveyor testified of surveys made by him showing that the narrow tract of land in question is a part of Lot 8. In making these surveys, the surveyor had recognized and used as starting points various monuments as set forth in an ordinance passed by the City of DeSoto on December 13, 1883. From the testimony of the surveyor it is clear that he started from no corner established by the United States government or from a corner reestablished in accordance with Sections 13220, 13221, R.S.1939, Mo.R.S.A. Secs. 13220, 13221. See Schell v. City of Jefferson, 357. Mo. 1020, 212 S.W.2d 430; Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544; Bowzer v. State Highway Commission, Mo.Sup., 170 S.W.2d 399; Klinhart v. Mueller, Mo.Sup., 166 S.W.2d 519.

It is quite doubtful that the line between Lots 7 and 8 can be ascertained by any survey commenced at any corner established by the United States government, or reestablished in accordance with statute. The plat of the 'Town of DeSoto' as executed, acknowledged and recorded September 24, 1857, makes no reference to any corner as established by the government, nor does it designate any monument as that used by the dedicators in surveying the land. The plat only purports to state that the 'Town of DeSoto' as platted is situated on the 'Southern part of U. S. Survey No 2008 in Township No 39 Range 4 E.' The plat is defective. However, since plaintiff and defendants acquired their lots by conveyances describing the land by lot number according to the plat, the plat as the dedicators laid it out upon the land was a part of the conveyances by which defendants and plaintiff acquired title to their respective Lots 7 and 8. Wright v. City of Joplin, 275 Mo. 212, 204 S.W. 910; City of Laddonia v. Day, 265 Mo. 383, 178 S.W. 741; Dolphin v. Klann, 246 Mo. 477, 151 S.W. 956.

Block 3, as shown on the plat of the 'Town of DeSoto,' is comprised of 24 lots, each 125 feet long and 25 feet wide. Lots 1 to 12 front eastwardly on the west side of Main Street and are numbered from south to north. As stated, the qualified surveyor plaintiff's witness, started from monuments named in the City's ordinance of 1883, and by his survey located the small tract of land in controversy as being a part of Lot 8. The surveyor prepared a plat of his survey (plaintiff's Exhibit 3) showing the dividing line between the Lots 7 and 8 as determined by the survey. The trial court incorporated the Exhibit 3 as part of the decree definitely showing the narrow tract to be a part of Lot 8, and rendered a judgment and decree fixing the dividing line and determining the fee simple title to Lot 8, as thus shown by the Exhibit 3, to be in plaintiff.

We have found no authority under which the City of DeSoto could undertake in 1883 to establish starting points or monuments from which surveys were to be made in order to determine the boundary lines of properties as shown upon the executed, acknowledged and recorded plat of 1857. (But it is not said the ordinance may not be helpful in locating the lines between properties conveyed by descriptive boundaries in reference to the monuments stated in the ordinance.) It appears to us that surveys from the monuments provided by the ordinance 'do not fit' the plat as outlined upon, applied to, or laid out upon the ground by the dedicators in their survey or by their sale of lots and by the erection of improvements by the purchasers thereof, especially with respect to the lots platted in Block 3. Assuming that plaintiff's surveyor, starting from monuments named in the ordinance, correctly surveyed a dividing line between Lots 7 and 8, it appears from the evidence in the instant case that the monuments named in the ordinance were not identical with those from which the survey was made by the dedicators in laying out the Town of DeSoto as platted. At least, the lines of the lots of Block 3 as determined by the surveyor, plaintiff's witness, were not in accordance with...