Probst v. Probst, 40593

• Decision Date: 18 December 1979
• Docket Number: No. 40593,40593
• Citation: 595 S.W.2d 289
• Parties: Evelin Louise PROBST, Plaintiff-Appellant, v. Emil Alvin PROBST, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 289

595 S.W.2d 289

Evelin Louise PROBST, Plaintiff-Appellant, v. Emil Alvin PROBST, Defendant-Respondent.

No. 40593.

Missouri Court of Appeals, Eastern District, Division One.

Dec. 18, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 15, 1980.

Application to Transfer Denied April 8, 1980.

Buerkle, Buerkle & Lowes, Albert C. Lowes, Jackson, for plaintiff-appellant.

William S. Rader, Cape Girardeau, for defendant-respondent.

WEIER, Judge.

Evelin Louise Probst sued her half brother Emil Alvin Probst to partition and sell approximately 127 acres of land owned by both parties as tenants in common. After the real estate had been sold by the sheriff to Evelin and the sale had been approved, an amended petition was filed which sought to quiet title to this real estate to assess money damages for alleged acts of Emil and other relief. The quiet title action centered about the location of a north and south line which adjoined land on the west owned solely by defendant Emil. He asserted the line was east of his barn and that if the intervening narrow sliver of land lying between the barn and a fence was not in his record title, he prayed to quiet title to this strip by reason of adverse possession. The issues framed by the amended petition were tried to the court without a jury and judgment was rendered in favor of Evelin and against Emil on the real estate claimed by her. The court adopted a description that determined the disputed west line jogged west to east 15 feet 895.5 feet north of the southwest corner and 2474.6 feet south of the northwest corner. The original description showed this to be a straight line. The court denied Evelin's prayer for an order to construct and maintain a line fence along this joint line with Emil without prejudice to any subsequent action authorized by Chapter 272, RSMo. 1969, and denied all of her prayers for money damages which were set up in the first count of the petition seeking to quiet title and also in subsequent counts. These claims are discussed at a later time in connection with the assignments of error directed to them.

We turn first to the contention of Evelin on appeal that the trial court erred when it determined that Emil had obtained title to a narrow .64 acre tract next to the west line of her property and that there is no legal or equitable theory to support such finding, including the plea of adverse possession asserted by Emil. Before we get into the problems involving the assertion of adverse possession between tenants in common (see Higgerson v. Higgerson, 494 S.W.2d 374 (Mo.App.1973)) or, in order to support the court's judgment for some other valid reason, involve ourselves in a discussion of another theory such as an agreement as to location of boundary (see Mothershead v. Milfeld, 236 S.W.2d 343, 347 (Mo.1951)), we consider whether there is any probative evidence to sustain the court's adjudication of title.

In the beginning, it seems doubtful that there was ever any dispute with regard to title. The plaintiff in her amended petition after obtaining the judgment in partition and purchasing the land alleged ownership of the land containing about 127 acres. The defendant admitted the description of the property set forth in this petition. He further admitted that Evelin purchased all of the right, title and interest of the parties in this land at the partition sale and that since that time Evelin was the "entire" owner of said tract. Evelin further alleged in her Count I that the line surveyed established that the fence as previously located between her property and Emil's property was not on the property line and that the true line was 15 to 30 feet west of the fence. Emil in his answer affirmatively alleged that he owned property consisting of some 80 acres adjacent to the real estate purchased by plaintiff at the partition sale. Emil further stated that the line fence had been in its present location from the time that plaintiff had owned his property and before defendant and his deceased mother bought the tract which Evelin later purchased at the partition sale. In plaintiff's brief, Count I is described as a suit to quiet title, "which mainly involved a fence line between plaintiff's and defendant's land." In defendant's brief on appeal, his position is stated: "At the partition sale, she purchased the property and then sought to have a legal determination made with respect to the boundary line between her newly purchased tract and her step-brother's farm." ¹ Irrespective of the nature of the action, however, it is evident that the survey which was used to support the court's determination as to the boundary is based upon a survey which was not definitely shown to have commenced from a corner established by the United States government or, if lost, re-established in accordance with the statutes. Chapter 60 RSMo. 1978. Such a survey lacks probative force. Carroz v. Kaminiski, supra, 467 S.W.2d 871, 872 (Mo. banc 1971); Burke v. Colley, 495 S.W.2d 699, 702 (1, 2) (Mo.App.1973).

The description of Evelin's land commenced at the northeast corner of U.S. Survey 190. The surveyor in this case testified that his survey of the boundary was based on a description taken from plaintiff's...