State ex rel. State Highway Commission v. Schwabe

• Decision Date: 09 May 1960
• Docket Number: No. 1,No. 47477,47477,1
• Citation: State ex rel. State Highway Commission v. Schwabe, 335 S.W.2d 15 (Mo. 1960)
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Leonard SCHWABE et al., on Counterclaim of Louis M. Noble, Mary L. Noble, and Exchange National Bank, a Corporation, Respondents
• Court: Missouri Supreme Court

Page 15

335 S.W.2d 15

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v.Leonard SCHWABE et al., on Counterclaim of Louis M. Noble Mary L. Noble, and Exchange National Bank, a Corporation, Respondents.

No. 47477.

Supreme Court of Missouri, Division No. 1.

May 9, 1960.

Robert L. Hyder, Minor C. Livesay, Jefferson City, for appellant.

Robert C. Smith, Columbia, Smith & Lewis, Columbia, of counsel, for respondents.

COIL, Commissioner.

Respondents Louis and Mary Noble were defendants in a condemnation proceedings instituted by the State Highway Commission.In Count 2 of their amended counterclaim they sought the reformation of a deed by which they had conveyed real estate to the State of Missouri.The trial chancellor found that the deed in question did not reserve a right of access to Highway 40 but that, as contended by respondents, such reservation had been omitted as a result of mutual mistake, and adjudged that the deed be reformed to include such reservation.The State Highway Commission(hereinafter called commission) has appealed from that judgment.

Inasmuch as the title to real estate is directly involved, we have appellate jurisdiction.Dalton v. Johnson, Mo.App., 319 S.W.2d 66;Dalton v. Johnson, Mo., 320 S.W.2d 569, 571.

In 1948 the commission was acquiring right of way in Boone County for new U. S. Highway 40.RespondentsLouis Noble and his wife Mary (respondent Exchange National Bank was the holder of notes secured by deeds of trust on the Nobles' property) owned 45 acres on the north side of the proposed east-west highway.The commission wished to acquire 5.9 acres of that property and in the spring of 1948 its employees and agents, T. H. Erwin(head of the right-of-way division in 1948) and Mr. Hoehler (deceased prior to the trial of the present case), began to negotiate with the attorney and agent for Louis and Mary Noble.Those negotiations culminated in a deed dated November 17, 1948, executed by the Nobles to the State of Missouri conveying the 5.9 acres.For purposes pertinent to any question here involved, the deed conveyed a strip of land approximately 1550 feet in length.About 250 feet from the west end of that strip an existing northsouth county road intersected the strip of land, the existing highway, and the proposed new highway.

The present condemnation proceedings was filed January 10, 1958.Its purpose was to acquire additional land for new Highway 40.In the meantime, that is, from the date of the deed, November 1947 until the summer of 1957, the Nobles had used the county road and thereby had enjoyed continuous access to the highway.In the summer of 1957, however, the commission blocked the county road by an embankment apparently at the north edge of the right of way of new Highway 40.In the condemnation petition the commission recited, as to respondents' land, that there was 'no right of direct access to land heretofore acquired except as set out in the' deed from respondents to the state.To that petition respondents filed the amended counterclaim heretofore mentioned.

It was and is respondents' contention that the agreement of the parties was that an easement of access was to be reserved in the deed at the place where the county road intersected the existing and proposed highways and that if the deed as written did not express that agreement, it should be reformed to accord therewith.

Appellant adduced no evidence below and contends here that the deed is plain and unambiguous and does not reserve but specifically conveys and relinquishes all rights of access, and that for reasons to which we shall hereinafter refer, respondents were not entitled to have the deed reformed.

Respondents' agent who negotiated for them and who approved the deed for their signatures was an experienced lawyer.He negotiated with Messrs. Erwin and Hoehler during the period from the spring to November of 1948.He testified that when he first examined the property in question he understood that all of his clients' access to Highway 40 was to be cut off and that as a result he consulted with a real estate agent as to the amount of damages which would accrue based on the loss of all direct access and that the suggested figure was $30,000 (the actual consideration for the deed as finally signed was $5,900); that the commission's agents offered $3,000 for the desired property and pointed out that it was not true, as he thought, that all access would be cut off but, on the contrary, the sale and purchase would be made with the understanding that access would be guaranteed to the new highway at the point where the existing county road intersected it; that the agents repeatedly so stated during the negotiations, and that it was the expressed intent of the commission's agents and himself as agent for the Nobles that the deed was to contain a reservation of a right of access to new Highway 40 at the place where the county road intersected existing Highway 40 as shown on the plat; that the first deed submitted did not make provision for any such reservation and when that was pointed out to agents Hoehler and Erwin they had another deed (the one signed) prepared.Noble's attorney testified further that he was of the view that the new deed was not as clear as it should have been with respect to the right of access but that the commission's agent pointed out that the deed did in fact reserve a right of access at the point mentioned because by its terms the Nobles were not relinquishing any right of way they had by reason of the existence of the county road; that he(the witness) concluded that the deed was so drawn that the Nobles did not relinquish but retained the right of access which they had by reason of the county road; that such was the way the commission's agents and he understood it and that if the language used did not or does not mean that, or is not so construed, then the deed does not represent the agreement of the parties.

Ira McDonald, in the real estate business in Columbia, testified that he was present at some of the negotiations and that at first the commission's agents wished to eliminate all access from Noble's abutting land but later agreed that he would continue to have access through the county road at the place where it intersected the highway and that he heard those agents tell Mr. Noble that he would be able to get on the highway at the place where the county road intersected it.

RespondentLouis Noble testified that commission agent Erwin said his (Noble's) access would be at the point where the county road intersected the existing highway and that Erwin cautioned him that if he sold any lots from his property in the future the purchasers would have no access to the highway other than by the county road; that he, Noble, executed the deed and determined to accept $5,900 for the property based on the understanding that he would have access at only one place, viz., where the county road intersected, and that otherwise he and his wife would not have signed the deed.Noble testified further that he had continued to use the county road and thereby had had access to the highway for about ten years following the execution of the deed, during which time no one from the commission had ever attempted to interfere with his access; that he first learned that the commission claimed that he had no such access but had conveyed it by his deed, in the early summer of 1957 when the county road was blocked by a 20-foot high embankment and his access to the highway thereby cut off.

T. H. Erwin, undisputedly the agent of the commission for the purpose of acquiring the right of way in question in 1948, testified that the testimony given by Noble's attorney at the trial of the present case was substantially correct as to what had transpired during their negotiations; that he had specifically pointed out to Noble where he would have access to the highway, viz., at the place where the county road intersected; that the property was purchased by the commission with the understanding that Noble would retain that right of access; that he had pointed out to Noble that it would be his only point of access; that it was the understanding of the parties that the right of access at the county road would remain.

In the view we take of this case it will be unnecessary to set forth the language of the deed or to construe any of its terms.We shall assume that the deed properly construed clearly did convey and relinquish all respondents Nobles' rights of direct access, including any right of access at the place where the county road intersected the highway.

We are reminded by appellant that our review of this equity case is de novo and that it is our province to weigh the evidence and reach our own conclusion as to its weight; and that to justify the equitable relief of reformation on the ground of mistake, the burden is on the party seeking that relief to show by clear and convincing evidence that the instrument did not express the agreement of the parties to it by reason of their mutual mistake.Walters v. Tucker, Mo., 308 S.W.2d 673, 679.In the present case, inasmuch as all the evidence was adduced by respondents and inasmuch as all the testimony which went to the question of whether the deed in fact expressed the agreement of the parties or failed to do so by reason of a mutual mistake, was favorable to respondents, the only question as to whether there was in fact a mutual mistake is the credibility of that testimony.There is nothing in the record which causes us not to defer to the finding of the trial chancellor on that issue.

If the testimony adduced by respondents was credible, as the trial chancellor found and as we have found it was, it seems apparent that the only reasonable conclusion is that there was an agreement of the parties that the deed was to contain a reservation of an easement of access to new Highway 40 at the point where the existing county road...