Peterson v. Harpst

• Decision Date: 10 March 1952
• Docket Number: No. 1,No. 42577,42577,1
• Citation: 247 S.W.2d 663
• Parties: PETERSON et al. v. HARPST
• Court: Missouri Supreme Court

Page 663

247 S.W.2d 663

PETERSON et al. v. HARPST.

No. 42577.

Supreme Court of Missouri, Division No. 1.

March 10, 1952.

Rehearing Denied April 14, 1952.

Gresham, Hizer & Boughan and Walter J. Gresham, Kansas City, for appellants.

Terrence Riley, Platte City, for respondent.

VAN OSDOL, Commissioner.

This is an appeal from a judgment determining title to an irregular tract of land, an island in the Missouri River, to be in defendant.

Plaintiffs-appellants, heirs at law and widow of Andrew Hartvedt, deceased, had instituted the action to try and determine title to a described irregular tract of land, being the 'same island described in patent from Platte County to Andrew Hartvedt, dated March 3, 1924, * * * together with all accretions that have been added thereto.' Plaintiffs alleged the island with accretions now contains approximately 1300 or 1400 acres. Defendant in his answer alleged his ownership of a tract described in the answer (and in the trial court's judgment) which tract was alleged to contain 810.6 acres 'together with any accretions thereto.' There can be no doubt that the varying descriptions in the respective pleadings were intended to describe the same island, title to which is in dispute. However, defendant introduced evidence tending to show that the island described in the patent to Andrew Hartvedt was destroyed by the action of the river in 1924. According to defendant's evidence, two islands were built by action of the river in 1926; and subsequently merged forming the one island. Defendant alleged that he had owned and had been in possession of the island, the land in the answer described, since 1927; asserted his claim of title by adverse possession; and prayed the court to ascertain and determine the title and to adjudge the defendant the absolute owner of the land.

In a colloquy between counsel and the trial judge, a reference was made to an action which Andrew Hartvedt, who died in 1943, had instituted in his lifetime in which action he claimed title to a part or all the land described in defendant's answer. See Hartvedt v. Harpst, Mo.Sup., 173 S.W.2d 65. A reference by counsel was also made to an action brought by some of the plaintiffs herein for specific performance of a contract of compromise, and for partition. See Hartvedt v. Harpst, Mo.App., 216 S.W.2d 539. In the instant case defendant's answer contained the allegation that a decree was entered March 12, 1947, in the Circuit Court of Clay County, in which decree defendant was adjudged the owner and entitled to the possession of 350 acres of the island in the decree described; however, prior to the trial of the instant case, defendant by leave of court withdrew the paragraphs of his answer containing such allegation. And there was no other pleading and no evidence introduced in the instant case tending to show the final disposition of the cases cited supra, nor is it disclosed in the record that any final order or judgment was entered in the cited cases upon which either of the parties, plaintiffs or defendant, rely as a former adjudication of title. Counsel for plaintiffs-appellants in his opening statement advised the trial court of a defect of parties plaintiff in these former actions, and we may assume the parties to the instant action have abandoned the former litigation. Forsee v. Garrison, 208 Mo.App., 408, 235 S.W. 473.

This court will review the instant case, an action at law tried without a jury, upon both the law and the evidence as in suits of equitable nature. The judgment will not be set aside unless clearly erroneous, and due regard will be given to the opportunity of the trial court to judge the credibility of the witnesses. RSMo 1949, Sec. 510.310, subd. 4, V.A.M.S.; Hart v. T. L. Wright Lumber Co., 355 Mo. 397, 196 S.W.2d 272.

Plaintiffs, in support of their claim of title, introduced a patent from Platte County, dated November 1, 1920, Andrew Hartvedt, grantee, purporting to describe forty acres of land situate in Sections 5 and 6, Township 53, Range 36, Platte County, Missouri. However, the conveyance of 1920 did not correctly describe the forty acres of land intended, and plaintiffs introduced into evidence a correction deed from Platte County, dated March 11, 1924, which describes an irregular tract comprising forty acres in Sections 5 and 8. Plaintiffs claim title to the lands in their petition described under these conveyances from Platte County, it being contended by plaintiffs that the land, an island with accretions, as in the petition stated, is now approximately 1300 or 1400 acres. It is asserted by defendant that these conveyances were never authorized by any order of the County Court of Platte County and, consequently, title to the land (in the instruments described) in 1924. It is not contended by plaintiffs that they or their decedent and predecessor, Andrew Hartvedt, have ever entered upon or have been in actual possession of 'the island'; and Malvina Hartvedt, widow of Andrew, testified that in 1934, 1935 or 1936 she and her husband had passed along the bank of the Missouri River and had looked 'at this island'. She and plaintiffs' attorney, who testified as a witness, identified a photograph as 'the way the island looked from the mainland'. Malvina stated the island was just 'ground, or brush, whatever you call it--willows. * * * I didn't see anything except willows'. Counsel testified that in 1938 he had walked along the bank of the river to inspect the island, 'and we climbed trees * * * and climbed on top of sheds'. Malvina and counsel saw no house or barn or fences, or any other improvements.

Plaintiffs offered four exhibits certified as copies of War Department maps made by the Corps of Engineers, U. S. Army, on file in the office of the Division Engineer, Missouri River Division, Kansas City, which maps reflect segments of the Missouri River including the location of the land, the island, title to which is in issue, and delineate and show the main channel of the river and islands therein. These four maps, respectively of the years 1922, 1928, 1930 and 1940, each disclose an island of outline and extent somewhat like the outline and extent of the tract of land claimed by defendant, and title to which was adjudged to be indefendant by the trial court's judgment. The map of 1922, showing a survey made in November of that year, outlines an island, the body of which is partly in the same position and location in the river as the island involved in the instant case; but the body of island as shown by the map of 1922 is shown as lying in part more to the northwestward of the position of the tract in issue. Plaintiffs-appellants contend the trial court erred in excluding these exhibits.

Plaintiffs also introduced into evidence a conveyance from Platte County to defendant, Otto Harpst, dated June 4, 1928, purporting to particularly describe an irregular tract of 100 acres in Platte County; and a conveyance to defendant, Otto Harpst, dated June 4, 1928, purporting to particularly describe an irregular tract of 250 acres in Platte County. And plaintiffs introduced into evidence certified copies of minutes from the record of the County Court of Platte County, under date of June 4, 1928, which minutes recite the proceedings of the court as follows, 'Court sells Otto Harpst 100 acres (and 250 acres) abandoned River Bed Land' near Sections 9 and 10, Township 53, Range 36, and 'orders clerk to make deed for same.' But it is conceded and the trial court found that the conveyances to defendant Harpst did not correctly describe the island (the two islands) or any part of the island, title to which is in issue.

Plaintiffs introduced receipts for taxes paid by them and their predecessor on real estate for the years 1924 and 1950, inclusive. The real estate is described in the tax receipts as parts of quarter-sections in Sections 5 and 8. Defendant introduced receipts for taxes paid by him on 350 acres 'Island Land' in various stated sections for the years 1930 to 1943, inclusive. Defendant testified he had paid taxes on 'this island' from '1929 on'.

A witness for defendant testified that he resided on the northeasterly bank of the Missouri River and near the island involved herein since 1916. In 1920, the river 'cut' to the eastward; and in 1924, the river started 'cutting again,' and continued during the year 1925 and part of the year 1926. 'There wasn't any island showed up there until 1926.' In June of that year, an island started to form; in the subsequent two years, another island formed; the islands were mostly in Sections 4, 5, 8 and 9; the larger island was of approximately 250 acres; the smaller island was approximately 100 acres in area. The witness stated that defendant took possession of these lands in 1927; did some plowing in the fall of that year; and 'sowed some duck stuff.' In the spring of 1928, defendant moved his tractor, farm machinery, and some lumber onto the island, and later, in 1928 or 1929, defendant built fences and a two-story house. In 1929 or 1930, defendant built a large barn, 'probably 60 feet long by 48'. The land was rented and farmed until 'up in the 30's, when it got so dry'. In the dry years the land was rented as pasturage. Since that time there have been accretions added, and more recently parts 'of the 250' have been taken away by the river.

Defendant testified of the improvements made in 1928, 1929 and 1930. He testified of filling in between and building a roadway uniting the two islands, and of the subsequent uniting or merging of the islands. 'In 1928 there was just one body of 350 acres.' Defendant estimated he had spent ten or twelve thousand dollars in clearing, fencing and improving the property. Defendant introduced a survey delineating the boundary of...