Macom v. Brewster

| Mo. | Mar 4, 1918

BOND, P. J.

I. At a partition sale plaintiffs and defendant acquired title to adjoining lots, numbered 32 and 39, of Davidson’s Addition to the city of Poplar Bluff, Missouri. On July 14, 1913, commissioner’s deeds to said lots 32 and 39 were duly executed and delivered to plaintiffs and defendant, respectively. Each deed located the lot then conveyed according to the measurements stated in the plat. Afterwards a house was built on what was shown by the plat of the subdivision to be lot 39. On March 4th, 1914, a dispute having arisen over the boundary line, this suit was instituted. The petition seeks to determine the boundary between lots 32 and 39, and eject defendant on the allegation that his house was located on lot 32, if correctly bounded.

In his answer defendant disclaimed any interest in lot 32 and denied that he was in possession of premises other than lot 39, upon which his house stands.

On the trial a jury was waived, and the evidence shows that the controversy arose over a difference of opinion as to the measurements- of the lots comprising Davidson’s Addition as platted and the actual measurements of the surface of the ground; that this difference in the two measurements is a matter of about fifty feet. The evidence tended to show that according to actual measurement of the surface of the ground the house of the defendant Brewster is on lot 32, but that a straight line running from Elm Street (conceded by .all surveyors to be a proper starting point), running north, the distance specified on the plat would place the house on lot 39. There was also evidence tending to prove that if College Street should be located as prescribed on the dedicating plat, there would be no excess in the dimensions of the lots.

The court found on the second count in ejectment, among other things, as follows: -

“That the two-story house mentioned in the evidence at all times has been located entirely on Lot 39, in Davidson’s Addition, which Lot 39 is owned by the defendant and adjoins Lot 32. The court further finds that there is no surplus land not platted in Davidson’s Addition, and that the deeds of plaintiff and that of defendant properly describe their respective holdings according to the original plat of Davidson’s Addition, introduced in evidence from page 11 of the Plat Book and referred to in the commissioner’s deed under which plaintiffs hold, and in the commissioner’s deed under which defendant holds.”

On the above finding the court gave judgment for defendant, from which plaintiffs appealed.

II. This case must be governed by the rule announced by this court construing the statutes providing for plats of cities. [R. S. 1909, secs. 10290-10294, inch] With that object this court recently said that the ordinary rule as to the conclusiveness of courses, distances and monuments should be suspended by applying the doctrine of estoppel, by the recitals of his deed, to any person holding a conveyance wherein his land is described according to the lines and measurements set forth on the public plat. [Laddonia v. Day, 265 Mo. l. c. 397; Jackson v. Miller, 195 S. W. 703.]

In this case the additional abstract discloses that the parties took their respective deeds from a commissioner in partition and that the lots so conveyed were bounded according to the lines and measurements and designations as laid out in the public plat of Davidson’s Addition to the city of Poplar Bluff. There was evidence tending to show that the application of the locations and measurements of the lots according to their description in the public plat would leave the house on lot 39, which is owned by defendant. The trial court, sitting as a jury, found in accordance with that testimony.

In the absence of error on the trial (not disclosed in the record) that finding is not reviewable on appeal. The result is that the judgment of the trial court is affirmed. It is so ordered.

All concur.