Terry v. City of Independence

• Decision Date: 12 April 1965
• Docket Number: No. 2,No. 51038,51038,2
• Citation: 388 S.W.2d 769
• Parties: Charles N. TERRY and Clara L. Terry, Plaintiffs-Appellants, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation, Defendant-Respondent
• Court: Missouri Supreme Court

Page 769

388 S.W.2d 769

Charles N. TERRY and Clara L. Terry, Plaintiffs-Appellants, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation,

Defendant-Respondent.

No. 51038.

Supreme Court of Missouri, Division No. 2.

April 12, 1965.

Wm. Fred Burns, Independence, for plaintiff-appellants.

S. Ralph Stone, City Counselor, Thomas D. Cochran, Asst. City Counselor, Independence, for defendant-respondent.

BARRETT, Commissioner.

This is an action in two counts, one for a permanent injunction, and two to quiet the title to a strip of ground, 60 feet by 50 feet, which the plaintiffs-appellants allege the city has appropriated as a public street across the corner of a lot, 105 feet by 165.4 feet, now owned by them. Upon oral motion at the close of the plaintiffs' case the court, being of the opinion that there was not 'any case here for these plaintiffs,' dismissed the action and the plaintiffs appealed. The Kansas City Court of Appeals was of the opinion that the case involved the title to real estate within the meaning of the constitution (Art. 5, Sec. 3, V.A.M.S.) and accordingly transferred the cause to this court.

The respondent city has moved to dismiss the appeal for the stated reason that the appellants' brief does not contain 'a fair and concise statement of the facts.' Sup.Ct. Rules 83.05; 83.09, V.A.M.R. This motion is without substantial merit and is therefore overruled. This was a courttried case and as of course is reviewable 'upon both the law and the evidence as in suits of an equitable nature' and the judgment is not to be 'set aside unless clearly erroneous.' Sup.Ct. Rule 73.01(d); Curd v. Reaban, Mo., 232 S.W.2d 389 (an adverse possession case). More particularly, since the court in effect decided the cause at the close of the plaintiffs' evidence the problem is whether upon the record before the court 'the strip of land in controversy is part of an established road (by prescription) for the use of the public and is now being so used by the public.' Gilleland v. Rutt, Mo.App., 63 S.W.2d 199, 201; Eatherton v. Henderson, Mo., 59 S.W.2d 623. While these latter cases were decided prior to the enactment of the noted rules and prior to the adoption of the Civil Code of Missouri in 1943, they were adverse possession cases and in the Gilleland case the trial court sustained a demurrer at the close of all the evidence and entered judgment for the defendant.

It should be noted in passing that this case is not concerned with dedication although the terms dedication, prescription and adverse possession are often used interchangeably. State v. Thompson, 91 Mo.App. 329, Annotation 76 A.L.R.2d 535, 536. And McGrath v. City of Nevada, 188 Mo. 102, 86 S.W. 236, City of Hardin v. Ferguson, 271 Mo. 410, 196 S.W. 746, Heitz v. City of St. Louis, 110 Mo. 618, 19 S.W. 735, are all strictly speaking dedication cases. As stated, the sole question for determination is whether the City of Independence acquired an easement to this particular strip of ground by adverse possession. And while the general rules as set forth in what has come to be one of the leading cases (State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174) are applicable it is not necessary by reason of their sheer number to cite cases other than those involving cities and other public bodies. As a matter of fact there is no difference of opinion between the appellants and the respondent on this subject, as a part of the general rules it has become a principle that a municipality or other public body may acquire a street or road over the land of another by adverse possession after the statutory period of limitation, here ten years, RSMo 1959, Sec. 516.010. Gilleland v. Rutt, supra. In addition to the cases cited in the course of this opinion, the rules relating to municipalities and adverse possession are set forth in one form or another in these texts,--39 C.J.S. Highways Secs. 3-24, pp. 921-945; 25 Am.Jur. (Highways), Secs. 11-16, pp. 346-349; 3 Am.Jur.2d (Adverse Possession), Sec. 139, p. 225.

As with the applicable rules of law there is also no dispute as to the facts. In June 1947 a tract of forty acres was platted as Hocker Homestead consisting of 45 lots. On the south the subdivision is bound by Pacific Avenue and on the west by Hocker Street. Pacific Avenue dead-ends at Hocker Street and thus at the juncture of these two platted streets the corner is a right angle. Both streets are platted as 50 feet wide. Lot 11 is the southwest corner lot, fronting 105 feet on Pacific and 270.4 on Hocker and the strip of ground now in dispute and claimed as a street by the city is across the south end of this lot. Lot 12 to the east adjoins Lot 11 and the plaintiffs, Mr. and Mrs. Terry, 'moved into' and it is assumed have owned Lot 12 since the platting of the addition. Furthermore, across and on the south side of Pacific Avenue the Terrys owned a larger lot, 297 by 146.66 feet, and Hocker Street dead-ends at this lot and there joins Pacific Avenue. It does not appear who after the platting of the addition owned corner Lot 11. And it does not appear whether there are any improvements on the south 165 feet of the lot, the rather plain inference from the record is that there are none. Furthermore, while Lot 11 was platted as 270.4 feet in length, in some manner not revealed the north 105 feet have become detached and the lot is now 165.4 feet long and 105 feet wide. In the trustee's deed and the quitclaim deed to the Terrys the descriptions are 'All of Lot Eleven (11) (except the North 105 feet) HOCKER HOMESTEAD, an Addition in and to the City of Independence.' On August 1, 1958, by virtue of a 'Trustee's Deed Under Sale' (probably from the land trust for taxes) and for a recited consideration of $100 the Terrys became the purchasers of Lot 11, except the north 105 feet. And ecorded on November 15, 1958, was a quitclaim deed from Charles and Edna Hubbard to the Terrys for 'One Dollar and Other Valuable Considerations.' After thus acquiring title to the south 165.4 feet of Lot 11 in 1953 the Terrys instituted this suit against the city in 1961.

The Terrys have lived at 508 Pacific Avenue next door to Lot 11 since 1947, they had lived there eleven years when they purchased the lot in 1958. They have paid special assessments and back taxes on the lot up to and including 1961 (they had statements for the 1962 and 1963 taxes but had not paid them when the case was tried in November 1963.) Mr. Terry said that when he purchased the property in 1958 he did not know where the corner 'peg' was until he had it surveyed in 1959. And the surveyor, incidentally, was the engineer who had platted the subdivision in 1947. As to the city's possession and use of the strip of ground involved here Mr. Terry said that the city and the traveling public had used the south part of the lot as a city street continuously since 1947, 'That street was a curve. The first time I ever saw it it went across the corner of that lot, so I was told.' He only claimed that the area of use changed over the years, 'It edged over a few inches every year, because the cars got on there all the time, and when they graded they graded to where the traffic had went to.' He said that at one time the street even took 25 feet off of Lot 12 and encroached further on Lot 11 than it does now but after the survey he piled dirt up 'regaining some more property,' possibly 15 to 18 feet. Incidentally, no part of Lot 12 is involved in this action. Then in 1961 Mr. Terry and various city officials were engaged in a controversy, he built a fence along what he said was 'my property line,' the officials threatened to have him arrested if he didn't take the fence down and '(t)he city had it blocked for about ten days during the oiling period when we were more or less arguing back and forth.' Mr. Terry is in the construction business and he uses his lot on the south side of Pacific Avenue as a storage place for his equipment and in addition he stores his heavy machinery on that part of the platted area designated as the fifty foot strip for Pacific Avenue: 'Q. You use this portion which is marked on the plat as Pacific Avenue--do you use that area to store your goods in? A. Yes, sir; I use that to keep the cars from hanging around there. The City didn't claim it and I wanted to keep down the traffic so they couldn't have a race track all the time. Q. That portion that is designated as Pacific Street, you use that portion all the time? A. Yes, sir, I do. Q. And you have been using it for how long? A. I believe 1954, when I bought the lot on the south side.'

Specifically on cross-examination Mr. Terry gave this evidence as to the city's use and occupancy of the strip of ground involved here:

'Q. Mr. Terry, you have lived next door to Lot 11 or owned the property just to the east, which is Lot 12, since 1947?

'A. Yes, sir; that's right.

'Q. You purchased this Lot 11, the subject of this particular lawsuit, in 1958?

'A. Yes, sir.

'Q. So you lived there a period of some eleven years before you purchased Lot 11?

'A. Yes, sir; that is correct.

'Q. At the time you lived on Lot 12 next door to this lot you were aware, were you not, that a portion of Lot 11 was being used for this street?

'A. Yes, sir.

'Q. You had known this all the time you had been living there from 1947 to 1958?

'A. I can't say I knowed for sure because I didn't know where the peg was. I had been told it went across Lot 11; I hadn't had it surveyed.

'Q. It was your judgment that was the case?

'A. Yes, sir; I thought it was and I had been told that.

'Q. That was true all of these eleven years before you purchased this property?

'A. Yes, sir; as far as I know.

'Q. Never to your knowledge from 1947 up to the present time has the road ever come down there and made what we would call a square right turn?

'A. No, it never has.

'THE COURT: It has always been on a curve?

'THE WITNESS: Yes.

'Q. And the curve took in a portion of Lot 11?

'A....