Turpin v. Watts

• Decision Date: 07 November 1980
• Docket Number: No. 10962.,10962.
• Citation: Turpin v. Watts, 607 S.W.2d 895 (Mo. App. 1980)
• Parties: William J. TURPIN and Ann W. Turpin, his wife, Plaintiffs-Appellants, v. David L. WATTS and Karen A. Watts, his wife, Defendants-Respondents, and Robert H. Margolin, Trustee, and Indian Springs State Bank, a Kansas Banking Corporation, Defendants.
• Court: Missouri Court of Appeals

607 S.W.2d 895

William J. TURPIN and Ann W. Turpin, his wife, Plaintiffs-Appellants, v. David L. WATTS and Karen A. Watts, his wife, Defendants-Respondents and Robert H. Margolin, Trustee, and Indian Springs State Bank, a Kansas Banking Corporation, Defendants.

No. 10962.

Missouri Court of Appeals, Southern District, Division Two.

November 7, 1980.

John L. Walker, Phillips, McElyea, Walker & Carpenter Corp., Camdenton, for plaintiffs-appellants.

John E. Curran, Lewis Z. Bridges, Curran & Loraine, Osage Beach, for defendants-respondents.

HOGAN, Judge.

This is an action for a mandatory injunction. Plaintiffs and defendants, to whom we shall refer in the singular, own adjoining lakefront lots situated on the Osage arm of the Lake of the Ozarks. Alleging that defendant had violated a restrictive covenant by constructing a residence lakewards of a setback or building line, thereby obstructing his view, plaintiff sought to compel defendant to move the residence to comply with the restrictive covenant. The cause was tried to the court sitting without a jury. No request for findings was made by either party. The trial court entered a general finding for the defendant. Plaintiff appeals.

In May 1955, a now defunct corporation subdivided a tract of land situated in sections 4 and 5, township 39 north and sections 33 and 34, township 40 north, range 16 west, in Camden County. The land subdivided includes fractional lots, but the legend on the plat indicates the tract contains 50 to 60 acres. This subdivision is called the Shawnee Bend Subdivision No. 3. It extends into the Osage arm of the lake from the south and abuts the lake on the west, north and east.

In 1972, Gerald Stonitsch and Nunzio Restaino owned Lots 51 and 51A of the Shawnee Bend No. 3. Stonitsch and Restaino subdivided and platted these lots as a new subdivision, called Chimney View Estates. Chimney View Estates is a finger of land which projects into the Osage arm of the lake from south to north along and upon the section line which divides sections 33 and 34 in township 40 north. Chimney View Estates is divided into 12 lots. Lots 1, 2, 3, 4 and half of Lot 5 abut the lake on the east. We are concerned with Lots 3 and 4. Plaintiff's property is Lot 3; defendant owns Lot 4, upon which the allegedly offending residence was constructed. The shoreline of Lot 4 meanders from southeast to northwest a distance of 90 feet more or less; the lake frontage of Lot 3, which adjoins Lot 4 on the south, is 75 feet more or less. The plat bears the following legend, among others:

"No building shall be erected between the 20 foot minimum building line and the 660 countour sic line of the Lake of the Ozarks."

The "building line" or setback is sketched along the perimeter of the subdivision. By warranty deed dated March 6, 1973, Stonitsch, Restaino and their wives conveyed all of Lots 3 and 4 to defendant and his wife. The parcel conveyed is described as follows:

"All of Lots 3 and 4 in Chimney View Estates, a subdivision, filed for record in Book 14 at page 82 in the Camden County Recorder's Office, being a resurvey of Lots 51 and 51A in SHAWNEE BEND NO. 3, all as shown on the plat of said subdivision filed for record in Plat Book 4, page 27, Office of Recorder of Deeds, Camden County, Missouri. Subject to restrictions, reservations, conditions and easements of record...."

Perhaps of necessity, the parties' proof was diffusely presented, but it would serve no useful purpose to recount all the evidence at length. Consideration of three factual aspects of the case is all that is necessary to an orderly disposition of the appeal.

To begin with, the actual location of the setback-on the ground-was a matter of factual dispute in this case. Both parties produced surveyors and the private surveys each had prepared. Plaintiff called a Mr. David Slagle, a registered land surveyor with several years experience. This Mr. Slagle had surveyed the Chimney View subdivision for Stonitsch and Restaino, and was familiar with the "restrictions setback contained upon the plat." Shortly before trial Mr. Slagle had been employed to "determine all of the dimensions" of defendant's residence, "and the relation of the defendant's house to the building line and to the original 660 contour line." Mr. Slagle explained that "the ground had been changed." Asked how it had been changed, the witness further explained that the lakefront part of defendant's lot-Chimney View Lot 4-had been "filled in" so the "land area" of the defendant's lot was extended out into the lake on the east. Further elaborating, Slagle testified that on the Chimney View plat, "the 660 line was shown as a crooked line because we actually established the shore line by taking the elevation." When he made his most recent survey, Mr. Slagle found the original pin which marked the 660 line had been covered over, so he established the location of the pin by "drawing a straight line" between lots 5 and 4. This survey, received in evidence as plaintiff's exhibit 3, indicates that defendant's residence protrudes across the "original" setback 17.5 feet on the south (adjoining plaintiff) and 4 feet across that line on the north. A concrete walk in front of the residence protrudes even further. On cross-examination, Mr. Slagle testified that the setback had been "sketched freehand" on the original Chimney View plat, and that actual bearings had not been taken before the setback was sketched in. Further cross-examination disclosed the witness had made a previous survey of the defendant's residence on Lot 4 at plaintiff's request. Mr. Slagle was examined closely about both surveys; it is sufficient here to say that that examination disclosed Mr. Slagle made a number of assumptions, and there are probably inaccuracies in both surveys.

The defendant also called a registered land surveyor, one Dexter Slagle. This witness had been surveying Camden County land for nearly 21 years. In February 1977, he was employed by the defendant "to locate the ... lot lines on lots 3 and 4 in Chimney View subdivision, also to locate... all the buildings located upon those lots, to get elevations on the lot corners and locate sea walls existing, sea walls and locations or elevations of those walls." This witness had also drawn a plat, based on the data he obtained. The plat is before us as defendant's exhibit C.

This witness testified that he and his crew "had difficulty" locating the 660 contour line because a rock retaining wall had been built "beyond," i. e., lakewards, of the "original" 660 line, "and there had been a fill made behind that wall which made it impossible to locate the original 660 contour line." This witness had attempted to locate both the original 660 line and the building line on the ground, but was unable to do so because, according to his calculations, the pins marking the original 660 contour line had been set slightly above 660 feet. The witness expanded this remark by saying that it would be difficult at any time to relocate any particular course which followed the 660 contour line because the shoreline of the lake "... changes periodically. It leaches away or people build it up and extend it out into the Lake sic further."

This witness was then shown defendant's exhibit C, the plat or private survey he had prepared for the defendant, and his interrogation proceeded thus:

"Q. Now with respect to plaintiff's residence... and defendant's residence..., does your survey work indicate that there is more than 20 feet from the now existing 660 contour, and both those residences?

A. As the 660 is now located?

Q. Yes, sir.

A. Yes, it would be more than 20 feet."

The force of this testimony was considerably diminished by the witness' testimony that he had located the 660 contour line by calling the Union Electric Company at Lake Ozark, asking the "lake level" for the particular day, and by using their advice as a basis "for getting our elevations."

There is other evidence concerning the retaining wall, or "sea wall" which was constructed around the perimeter of the Chimney View subdivision. Mr. Stonitsch testified that he and his partner constructed a sea wall around the whole subdivision, but the exhibits indicate an "old" and a "new" sea wall, and Mr. Stonitsch did not distinguish the two. The defendant at one point indicated that he and "the developers" constructed a sea wall along the shoreline of his lot and plaintiff's lot after defendant purchased the lots, but his testimony leaves one in doubt when the "old" sea wall was replaced by the new one. The place, purpose and dimensions of both walls was only most vaguely developed.

Two other factual aspects of the case must be considered. The course of dealing between the plaintiff and the defendant is of considerable importance. Plaintiff testified that he became interested in buying his lakeshore property-Lot 3 in Chimney View subdivision-about the middle of November 1975. Lot 3 had a residence on it; Lot 4 was unimproved. Plaintiff negotiated with defendant and on December 4, the parties entered into a contract for the sale and purchase of Lot 3 and some miscellaneous chattels.¹ For the total sum of $52,000 plaintiff was to receive Lot 3, together with the improvements thereon; defendant was to provide a title insurance policy; the sale included a good deal of furniture, "major" appliances, a boat and a boat dock. At plaintiff's request, "closing" was deferred to April 3, 1976.

In March 1976, plaintiff observed stakes on Lot 4. Plaintiff testified he spoke to the defendant, telling defendant he was "entirely too close" to the setback. Defendant replied that he could not build "further back" because dynamiting would be required, and defendant was unable to obtain a permit to blast. Plaintiff rejoined: "... change your style of house."

On cross-examination, plaintiff was asked if, in March, defendant did not offer to rescind the whole transaction. Plaintiff's testimony...