Roberts v. Harms, WD
| Decision Date | 26 January 1982 |
| Docket Number | No. WD,WD |
| Citation | 627 S.W.2d 924 |
| Parties | Leland N. ROBERTS and Ruby May Roberts, Respondents, v. Julius HARMS and Hulda Harms, Appellants. 32714. |
| Court | Missouri Court of Appeals |
Gary W. Fleming, Sedalia, for appellants.
C. B. Fitzgerald, Warrensburg, for respondents.
Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.
In this action brought to settle a disputed land boundary, plaintiffs Leland N. and Ruby May Roberts prevailed below. Defendants Julius and Hulda Harms appeal contending evidence of a surveyor called by plaintiffs and relied on by the trial court to support its judgment was improperly received over objection that the survey did not commence at a government corner. Reversed.
Harms own the west half of a quarter/quarter section which they bought in 1948. Lots were later platted from the east half of the same quarter/quarter section and in 1961 the Roberts bought one of these lots and a portion of another. The location of the platted lots places the west line of the subdivision and the rear property line of the Roberts' lots on the half quarter/quarter section line adjoining the east line of Harms' land.
Since at least 1961, the line dividing the Harms' property from the platted subdivision was ostensibly defined by a fence of woven and barbed wire attached to hedge posts. In 1978, Harms removed that fence, erected a new one some eight feet to the east and this suit followed. The issue is whether the land between the two fences belongs to Roberts or Harms.
The Roberts' petition was styled "Petition to Quiet Title." It alleged ownership by Roberts of the real estate according to the legal description of their warranty deed and further alleged that Harms were asserting some claim to that land by their act of erecting the new fence. The relief prayed was for a declaration of Roberts' ownership.
Harms answered by setting out the legal description of their property, also acquired by warranty deed, and by denying any claim to Roberts' property, only their own. They too sought a declaration of title. No contention was made in the pleadings nor did any subsequent proof suggest that the deed descriptions overlapped or were inaccurate. The sole question was where the dividing line between the properties was located on the ground.
At trial, Roberts and Harms offered testimony from registered land surveyors each had employed. The evidence from Roberts' surveyor was to the effect that even the old fence encroached somewhat on Roberts' land with the result that the boundary line was actually on Harms' side of the original fence. Harms' surveyor disagreed and testified that the new fence, some eight feet to the east of the old, was situated on the boundary.
Both surveyors acknowledged that the locations about which they testified had not been directly ascertained by measurement from an established or re-established government corner. Roberts' surveyor relied on corners established by the highway department and by surveyors for Whiteman Air Force Base and the Missouri Pacific Railroad. Harms' surveyor relied on the recorded plat of the subdivision. No documentation was introduced to demonstrate that any of the prior surveys or field notes on which the surveyors relied had themselves originated at an established government corner. In fact, Roberts' surveyor stated that it was impossible to find the original government corners.
The rule is well settled that a survey not shown to have started from a corner established by the government or, if lost, from a government corner re-established as provided by statute 1 has no probative value. Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971); Probst v. Probst, 595 S.W.2d 289 (Mo.App.1979); Moses v. Dawson, 596 S.W.2d 741 (Mo.App.1980). Where the surveyor relies on prior data which originated from a government corner, the reliability of that data must be shown by producing and proving the data in evidence. Thus, in Moschale v. Mock, 591 S.W.2d 415 (Mo.App.1979), plaintiff's surveyor testified that he had tied to a corner on a survey by another surveyor. The second surveyor was called and testified that he had commenced from a government corner in preparing his survey. This procedure, tying the ultimate product to origin at a government corner, was approved subject to the qualification that the data chain be produced and proved.
Neither of the surveys admitted in evidence in this case was of probative value under the rules of the cited cases. The surveyors did not start at a government corner or at any re-established point and the reliability of the work of...
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Ollison v. Village of Climax Springs
...from a government corner, reliability of that data had to be shown by producing and proving the data in evidence. Roberts v. Harms, 627 S.W.2d 924, 926[2,3] (Mo.App.1982); Barnhart v. Ripka, 297 S.W.2d 787, 792 (Mo.App.1956) ("Even the testimony of a surveyor as to the location of boundary ......
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Basore v. Johnson
...in accordance with statutes, is of no probative force. Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971); Roberts v. Harms, 627 S.W.2d 924, 926 (Mo.App.1982); Probst v. Probst, 595 S.W.2d 289, 290-91 (Mo.App.1979); Cornelius v. Tubbesing, 593 S.W.2d 609, 610 (Mo.App.1980); Wells v. E......
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Cantrell v. Bank of Poplar Bluff, 14112
...Basore v. Johnson, 689 S.W.2d 103, 106-08 (Mo.App.1985); Fuller v. Padley, 628 S.W.2d 719, 721-22 (Mo.App.1982); Roberts v. Harms, 627 S.W.2d 924, 926[1-3] (Mo.App.1982) 3; Moses v. Dawson, 596 S.W.2d 741, 743 (Mo.App.1980); Probst v. Probst, 595 S.W.2d 289, 290-91 (Mo.App.1979); Cornelius ......
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Wills v. Meador, 12417
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