Wolf v. Miravalle, 49682

• Decision Date: 14 October 1963
• Docket Number: No. 49682,No. 2,49682,2
• Parties: John H. WOLF and Edith Wolf, Appellants, v. Donald J. MIRAVALLE, Respondent
• Court: Missouri Supreme Court

Page 28

372 S.W.2d 28

John H. WOLF and Edith Wolf, Appellants, v. Donald J. MIRAVALLE, Respondent.

No. 49682.

Supreme Court of Missouri, Division No. 2.

Oct. 14, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

Nov. 11, 1963.

Schurr & Inman, Clayton, for plaintiffs-appellants.

Robert V. Niedner, Paul F. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent.

STORCKMAN, Presiding Judge.

This is an equity action to determine title to a strip of land lying between properties owned by the parties in Portage des Sioux, St. Charles County, Missouri. The parties acquired title to their respective properties from the same grantor, and the essential issue is the location of the northern boundary of plaintiffs' land. The court found the issues for the defendant, and the plaintiffs appealed from the judgment denying the plaintiffs' prayer for injunctive relief and decreeing reformation of plaintiffs' deed in accordance with the prayer of defendant's cross bill.

The Town of Portage des Sioux is located on the Mississippi River, the bank of which at the place in question runs generally east and west. The plaintiffs' land is situated in Block 82 of a subdivision named Northern Addition to the Town of Portage des Sioux, which Addition was platted and recorded in June 1854 and consists of generally rectangular subdivisions designated as blocks which are in a single row extending east and west. A strip of land running along the northern boundary of all blocks of Northern Addition including Block 82 is designated on the plat: 'perpetual Reservation of a street of 60 feet wide.'

In 1931, as shown by plaintiffs' Exhibit 4, another subdivision named Playground Addition was platted and recorded to the north of Northern Addition. Playground Addition is separated from Northern Addition by the strip of land 60 feet wide reserved for a street. The lots or blocks in Playground Addition are of the same width as those in Northern Addition. Lot 4 of Playground Addition is immediately north of Block 82 of Northern Addition but separated by the 'street of 60 feet wide.' Lot 3 of Playground Addition is immediately west of Lot 4. Sometime during the 1930's a dam was built in the Mississippi River at Alton, Illinois, which created an impoundment of water known as Alton Lake, which flooded practically all of Playground Addition and a portion of Northern Addition.

LeRoy Barnard was the owner of land in the vicinity including Lots 3 and 4 in Playground Addition and Block 82 in Northern Addition, on and over which land he at one time conducted a boat harbor known as the Palisades Yacht Club. Under date of December 18, 1956, Mr. Barnard leased the Palisades Yacht Club to the defendant Donald J. Miravalle and the lease included a tract of land in Block 82 'bounded on the West by the West line of Block 82, fronting 180 feet on PERPETUAL 60 foot street which forms the North line of block 82, and having a depth Southwardly of 300 feet.' On December 2, 1960, Mr. Barnard conveyed to the plaintiffs by warranty deed the eastern 76 feet 8 inches of Block 82, the northern boundary of which was described as 'a 60 foot street known as Perpetual Street.' Thereafter, on February 10, 1961, the Barnards conveyed to the defendant Donald J. Miravalle a tract of land in Block 82 of Northern Addition bounded on the west by the west line of Block 82 and 'fronting 180 feet on PERPETUAL 60 foot street which forms the North line of Block 82' together with Lots 3 and 4 of Playground Addition.

A roadway about 20 feet wide runs across the north end of Block 82 in an east and west direction and has been in existence at least 20 to 30 years. A survey of Block 82 made by Charles W. Ruff, the county surveyor, at the request of the plaintiffs, was introduced in evidence as plaintiffs' Exhibit 3. This shows the 60-foot-perpetual reservation for street purposes to be at least partially under water and that its south edge is about 10 feet north of the north side of the 20-foot roadway. The northeast corner of Block 82 is also under water. It is the 10-foot-strip of land north of the roadway that is in dispute.

The plaintiff John H. Wolf testified that on July 4, 1961, he and some friends were using a small boat dock on the northeast corner of Block 82 which was within the boundaries of the land he claimed was conveyed by his deed. The defendant disputed Mr. Wolf's right to use the dock and threatened to erect a fence and to pile dirt north of the private road so as to cut off the plaintiffs' access to the river. Thereafter, the defendant did erect a fence and dredged dirt which he piled on the 60-foot-street reservation for the express purpose of making a private parking area for the boats of his club members and to prevent the plaintiffs from having access to the river. The defendant did not testify.

Under date of October 3, 1961, the defendant obtained from the Barnards a quitclaim deed to land described as follows: 'All land which may lie between Perpetual Street as the same is now situated and located upon the ground in Portage des Sioux, Missouri and the Mississippi River extending between parallel lines between the lot lines of Block 82 of North Addition to Portage des Sioux, Missouri. Also all our right, title and interest in and to any part of Perpetual Street as the same is now located as well as the same is platted whether they be the same or not, and in between said two parallel lines and extended.'

The plaintiffs filed this suit on November 14, 1961, seeking to enjoin the defendant from maintaining the fence and piles of dirt on plaintiffs' property and in Perpetual Street and to require the defendant to remove those obstructions and to restore plaintiffs' property and Perpetual Street to their former condition.

The defendant's cross bill alleged that there has been for many years past a publicly known, used and recognized street known as Perpetual Street in the Town of Portage des Sioux; that the defendant and the plaintiffs both hold title by conveyances from LeRoy Barnard and Desmond Barnard, husband and wife, and it was the intent of the Barnards to convey to defendant all the land owned by the Barnards lying north of the established Perpetual Street; 'that at the time of the conveyance the parties thereto were not aware that Perpetual Street as located was any different than Perpetual Street as platted, if in fact the same is true'; that it was the intention of the parties to the conveyance to the plaintiffs to include only such land as was situated south of Perpetual Street 'as located'. The cross bill further alleges if the conveyance to the plaintiffs describes any land north of Perpetual Street as now located then in equity the said deed should be reformed 'because said words do then conflict with the ostensible intent of the parties.' The prayer of the cross bill is 'for an order of this Court reforming the said deed from Bernard to Plaintiffs and for the decree of this Court quieting title in Defendant to all that area lying North of Perpetual Street as the same is now located.'

The grantor LeRoy Barnard testified on behalf of the defendant and to the extent necessary his testimony as well as other evidence will be referred to later. The trial court found that the northern boundary of Block 82 as surveyed in July 1963 by the county surveyor generally coincides with the southern boundary of the 60-foot-perpetual reservation and with the south bank of the Mississippi River; that the 60-foot platted way was virtually submerged in the Mississippi River and has never been used as a roadway, public or private; that the 20-foot roadway has been generally known as Perpetual Street to old residents and has been maintained by the Town of Portage des Sioux; that the description of plaintiffs' northern boundary is ambiguous and must be construed considering the intention of the parties as shown by the instrument itself and the accompanying circumstances; that to the north there was only one visible street which was the established 20-foot street, and that Mr. Wolf and Mr. Barnard would be more likely to mean the existing street they both saw on the ground than a dedicated but invisible one lying under the water, and that the deed should be reformed. The decree covered a wide scope but for present purposes it is sufficient to say that it provided that the description in plaintiffs' deed dated December 2, 1960, be reformed 'by substituting for the words, in said description, 'on the North by a 60 foot street, known as Perpetual Street', the words 'on the North by the public street across the Northern end of said Block No. 82, as it exists and is used as a street of the Town of Portage des Sioux.''

In general, the plaintiffs' contentions on appeal are that the description in their deed was not ambiguous and that the evidence was insufficient to prove a mutual mistake. The first phase of these contentions is that the deed was tied in with the recorded plat and each is consistent with the other. The complete description of the land conveyed to the plaintiffs by the warranty deed of December 2, 1960, is as follows:

'A part of Block No. 82 of the Northern addition to the town of Portage des Sioux, as the same is marked and designated on the plat and subdivision of addition duly recorded in the Recorder's Office of St. Charles County, Missouri in Book D. No. 2 page 20. The said part of the said Block No. 82 herein conveyed being the Eastern 76 feet 8 inches of said Block No. 82 bounded on the East by Clark Street, on the North by a 60 foot street known as Perpetual Street, on the South by Front Street and on the West by the remainder of said block part of which has been leased to Miravelli.'

When a recorded map or plat of a subdivision is referred to in a deed conveying a portion of the tract, the map or plat becomes as much a portion of the deed as if it were fully incorporated therein. Mothershead v. Milfeld, 361 Mo. 704, 236...