Sanderson v. McManus

• Decision Date: 08 September 1952
• Docket Number: No. 2,No. 42655,42655,2
• Citation: 252 S.W.2d 351
• Parties: SANDERSON et al. v. McMANUS et al
• Court: Missouri Supreme Court

Page 351

252 S.W.2d 351

SANDERSON et al. v. McMANUS et al.

No. 42655.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1952.

Rehearing Denied Nov. 10, 1952.

Horace Warren Kimbrell, Kansas City, for appellants.

John L. Gaylord, Kansas City, for respondents.

BOHLING, Commissioner.

Clarence J. Sanderson, Sr., and Katherine R. Sanderson, husband and wife, instituted this suit on December 19, 1947, against James J. McManus and Anne B. McManus, husband and wife, asking that the title of certain residential property be adjudged in plaintiffs; that defendants be required to remove certain encroachments thereon within a time to be stated by the court, and for damages, alleged to be $3,000. Defendants filed an answer and cross-petition, in two counts, wherein, briefly stated, they sought to be adjudged the owners of the south 4 feet and 5 inches of the premises described in plaintiffs' petition, claiming title by adverse possession, et cetera, and damages by reason of plaintiffs' entry and commission of waste upon said strip of land. The findings, decree and judgment of the court were in favor of defendants, adjudged the title to the disputed strip in defendants, enjoined plaintiffs from claiming any title or right of possession therein, or easement, license, use or control thereover, and awarded defendants $1,142 damages. Plaintiffs appeal and contend the evidence was insufficient to sustain defendants' claim. The controversy has its origin in an erroneous survey.

Plaintiffs live at 5131 and defendants live immediately south of plaintiffs at 5133 Virginia avenue, Kansas City, Missouri. Plaintiffs purchased 5131 Virginia, a 50 foot lot, on October 26, 1944, the legal description reading: The south 35 feet of Lot 131 and the north 15 feet of Lot 130, Rockhurst Park Addition, Kansas City, Missouri. The south 4 feet and 5 inches of the above north 15 feet are here involved. Defendants purchased 5133 Virginia, a 40 foot lot, on June 18, 1941, the legal description reading: The south 30 feet of Lot 130 and the north 10 feet of Lot 129, Addition aforesaid.

Plaintiffs, after they occupied 5131 Virginia in July, 1940, used the driveway north of their house to reach the rear of their property. Sometime in 1942 Charles Less moved into the property north of plaintiffs, 5127 Virginia, and in 1944 or 1945 Mr. Less purchased 5127 Virginia. He testified this driveway was not a joint driveway but plaintiffs used it with his permission. In the Spring of 1947 a controversy developed between Mr. Sanderson and Mr. Less over this driveway and each barricaded the driveway against the other. On June 18, 1947, Mr. and Mrs. Sanderson sued Mr. and Mrs. Less to establish their right to the use of the driveway and to enjoin Mr. and Mrs. Less from interfering therewith. Mr. Sanderson testified he was advised he coudl not win the suit and it was dismissed on September 24, 1947.

On October 21, 1947, Mr. Sanderson contracted with William Karnopp to construct a driveway and in the rear a retaining wall on his property between 5131 and 5133 Virginia avenue. According to Mr. Sanderson, a few days thereafter his attorney, Horace W. Kimbrell, received a letter from defendants' attorney, John L. Gaylord, advising that defendants understood the proposed driveway would encroach approximately 4 feet upon defendants' property; that the boundary line between the two properties had been established for more than 10 years and any removal of or damage to the fence or property south thereof would constitute a trespass on the property of the defendants. In October, 1947, Mr. Karnopp constructed the retaining wall on the property line and the driveway approximately a foot north of the property line between plaintiffs' and defendants' property as shown by corrected surveys. In so doing some damage was occasioned defendants' home.

Prior to his death in 1934, Dr. George F. Berry owned 5127, 5131, 5133 and 5135 Virginia avenue. These residences are located, respectively, on Lots Nos. (from the north to the south) 132, 131, 130, 129, Rockhurst Park Addition, Kansas City, Missouri. As stated above, the descriptions in the deeds overlap the lot lines. All four lots front on the east line of Virginia avenue and extend east 135.54 feet and are, we understand, 45 feet wide, except Lot No. 129, which is 50 feet wide.

The following is plaintiffs' chain of title so far as involved, with the date of acquisition shown after owner's name: George F. Berry, November 8, 1924; Carroll W. Berry and Mildred M. Berry, September 15, 1933; Helen F. Mulcahy, July 2, 1940, from whom plaintiffs acquired title on October 26, 1944.

The following is defendants' chain of title so far as involved, with the date of acquisition shown after owner's name: George F. Berry, October 10, 1927; George C. Douglas and Lillian Douglas, June 2, 1932; George F. Berry, September 8, 1933; Carroll W. Berry and Mildred M. Berry, September 15, 1933; Edward M. and Lenora W. Berry, February 26, 1934; Elizabeth Wychoff, January 7, 1941, from whom defendants acquired title on June 18, 1941.

The common owners of the two properties were: George F. Berry, October 10, 1927, to June 2, 1932; and September 8, 1933, to September 15, 1933; Carroll W. Berry and Mildred M. Berry, September 15, 1933, to February 26, 1934.

Plaintiffs' house, 5131 Virginia, was built in 1924.

Edward M. Berry built for George F. Berry, his father, the houses at 5133 (defendants') and at 5135 Virginia in 1931. A survey of the properties was made in November, 1931, and he constructed the two houses in conformity to ths lines established by this survey and the building restrictions requiring construction 4 or 5 feet from the property lines. F. M. Hands, of the Hands Surveying Company, testified that in 1931 the property south of 5131 Virginia was vacant and the lines for 5133 and 5135 Virginia were determined from the building on 5131 Virginia. Later surveys, dated March 6, 1946, and May 19, 1947, revealed an error of approximately 5 feet on the north in this survey of 1931.

It is not questioned that, according to the correct survey, the bay window on the north of defendants' home is on plaintiffs' property a foot or more for a distance, east and west, of 18 feet or more; that the lower decorative stones of the front wall of defendants' home extended across the property line a foot or more; and that the eaves also overhang plaintiffs' property line over 2 feet.

Defendants contend that a fence and trellises at the rear, and between the properties, a terrace, and two or more poplar trees at the front of the property marked a line 4-feet, 5-inches north of the true line as the boundary between the two properties, and that defendants acquired title thereto by adverse possession.

Edward M. Berry lived at 5135 Virginia after he built the houses until 1933, and at 5133 Virginia in 1936 and 1937, and owned 5133 from 1934 to 1941. He testified that there was a terrace 1 1/2 to 2 feet high between the two houses, a wire fence in the back yard, and three or four poplar trees between 5131 and 5133 Virginia at the time he built the houses and these markers continued to exist while he lived in the property. He assumed the people who lived at 5131 Virginia had built the two or three strand wire fence, the terrace, and planted the poplar trees as they were there when he built the house in 1931, and that a Mr. Hardman had been a tenant at 5131 Virginia for eight or ten years. He claimed to the fence, the terrace, and the trees as the boundary line of the property at 5133 Virginia.

Foy D. Wade, the next occupant of 5133 Virginia, was a tenant of Mr. Berry until 1939. He testified that he had a water faucet underneath the bay window of the house and the fence began at the rear of the property and extended straight west up to and past the bay window, 2 or 3 feet beyond the water faucet; that the fence was far enough away from the house and bay window, about a yard, for him to walk between the fence and the window and attach the hose to water his yard; that the terrace and poplar trees were also there and prolonged the line of the fence; that two of the poplar trees died and he dug them out. He had trelliswork in the back yard.

Alexander Hamilton next occupied 5133 Virginia between July, 1939, and July, 1941, as a tenant. He stated his neighbors were, on the south, a Mr. Hancock, and, on the north, first a Mr. Wood, who operated a garage, and later the plaintiffs. He testified there was a big post in the fence along the back property line and from this post a fence extended westwardly between the two properties; that the line of the fence was about midway between the two houses, about 8 to 10 feet south of the line of the house at 5131 Virginia, and when it reached the house it made a right angle turn and was connected with the corner of the house at 5131 Virginia; that the fence had five 2-inch hollow pipe posts, from 5 feet to 3 1/2 feet high (following the grade of the ground), with two strands of wire strung on the posts, and trelliswork was also at the fence line on his side of the fence. He testified that after plaintiffs moved in, Mr. Zimmer, their son-in-law, did quite a bit of work repairing the fence; that 5131 was higher than 5133 Virginia; that there was a terrace between the two properties, the slope of which became steeper as one approached the rear property line and that there were two poplar trees in the front yard, constituting a prolongation of the fence line.

When Mr. and Mrs. McManus purchased 5133 Virginia in 1941 they were furnished a survey of the property dated June 18, 1941, which was made from points established in the 1931 survey, the erroneous survey. Mr. McManus testified that there was an east-west fence, consisting of iron posts, about 30 inches high, with two strands of wire, in the back yard between the properties terminating at the fence on the rear property line, and a trellis was tied to the fence; that a...