Cope v. Beltram

594 S.W.2d 319, 1980 Mo. App. LEXIS 2406
CourtMissouri Court of Appeals
DecidedFebruary 4, 1980
DocketNo. KCD 29252
StatusPublished

This text of 594 S.W.2d 319 (Cope v. Beltram) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cope v. Beltram, 594 S.W.2d 319, 1980 Mo. App. LEXIS 2406 (Mo. Ct. App. 1980).

Opinion

DIXON, Presiding Judge.

The trial court, sitting in equity without a jury, found the issues for the plaintiffs and decreed that the division line between [320]*320the plaintiffs’ and defendants’ lands was as described in the respective deeds of the parties. The plaintiffs were ordered to construct, at their expense, a division fence in accordance with a specified survey under the supervision of the surveyor. The defendants appeal.

Because of the divergent views of the parties, both as to factual matters and legal theory, the issues may not be pithily stated. Generally, however, the defendants’ appeal raises issues of the viability and appropriateness of plaintiffs’ pleadings, the correctness of the trial court’s establishment of the property line on the basis of the survey relied upon, and a claim of adverse possession.

At the outset, it must be stated that, based upon all the evidence and exhibits, the trial court’s determination of the legal description of the division line and the physical location of the description on the land is beyond dispute.1 There is simply no substantial evidence to the contrary.

Turning now to the factual matrix disclosed by the record, the parties acquired their title to adjoining tracts from the County Court of Lafayette County in 1954. Both tracts — each described portions of Lot 16 of Farmer’s Bank Subdivision of Gratz Place, a subdivision of Lexington, Missouri — are a portion of the river bluff overlooking the Missouri River. The record intimates a close proximity to the Civil War battlefield located in Lexington. The general area is referred to as “The Point” and is apparently a prime residential area. Both plaintiffs and defendants have constructed substantial residences on their respective properties. Although each tract of the parties consists of more than an acre, only 25-30 feet separates the residences at the closest point of proximity of the structures.

The subdivision in which the lands are located is of ancient vintage. Lot 16 embraces several acres and other described tracts. All of the deed descriptions reference the recorded plat in Plat Book 1, page 19, of the deed records of Lafayette County. The surveyor’s sketches and plats reveal the presence of a dead end public road traversing Lot 16 northwesterly from 17th Street in Lexington to a common corner of the parties. The common corner of the parties is at the point where the center line of the public road terminates on the common property line of the parties. This point is marked by an iron pin which was not only verified by the prolongation of the center line of the public road and the closure of the metes and bounds description at the same point, but also by the admissions of the parties.

Two surveyors testified in the case. One of them testified that he set the iron pin to replace a wooden stake he had set when laying out the parties’ lands by survey when the county conveyed the land. At the time of trial, this surveyor was the County Surveyor of Lafayette County. The survey made in 1954 by that surveyor was in evidence, and it coincides with his later survey and that of the other surveyor who testified.

Both deed descriptions begin at a common point on the northwesterly line of Lot 16. The descriptions then proceed from the point of beginning and in opposite directions by metes and bounds and then, by those metes and bounds, returning to the point of beginning. The descriptions close at the common point of beginning, a matter determinable by mathematics.

That the common boundary of the parties coincides is also mathematically verifiable since the call and distance of each description on the common boundary is the reciprocal2 of the other and the line begins at a commonly-described point and terminates at the point agreed to in the center line of the roadway. Additional verification for the fact that no gap or overlap exists between the properties on the common line is [321]*321found in the fact that the calls for course and distance as to the northwesterly and southeasterly boundaries of both parties are also reciprocals. This fact demonstrates beyond any doubt the nonexistence of any gap or overlap between the descriptions.

The physical location of the descriptions on the ground is likewise without doubt. The surveyors agree, one on the basis of his two surveys separated by twenty years lapse of time, the other by an independent survey close to the time of trial.

The difficulty, as is often the case in land disputes, lies in the efforts of the parties to erect, without professional advice, a fence marking the division line. Aside from the testimony of the professional surveyors whose testimony was succinct because of any lack of disagreement, the record is replete with vague and confusing testimony concerning the existence and location of various fences on or near the common boundary.

The defendants offered evidence that a fence of iron posts and wire was established in 1954 at or near the time of the acquisition of title. The location and removal of this fence remains uncertain in the record. Defendants assert “somebody came in at night and took the fence away.”

Thereafter, and shrouded in some uncertainty as to location and length, a rustic wood fence was constructed by the defendants. As best as may be gleaned from the evidence, a post and rider type fence was built along the same general lines as the prior iron post and wire fence.

The fence unquestionably began at the intersection of the public road and the property lines and ran northwest at least as far as the crest of the bluff. The defendants contend the length of the fence was that of the common boundary — 272 feet. The defendants admit, however, the fence beyond the crest of the bluff was “three hedge posts with wire” until three years prior to trial when it was “finished up down the hill.”

It is a fair statement from the whole record that, for 155 feet from the public road northwesterly, the location of the various fences has coincided with the common boundary line. From that point northwesterly “over the hill” to the rear of the parties’ property, the fences have traversed rough, brushy ground and, as the plaintiffs contend and the surveys show, encroach on the plaintiffs’ described premises. The encroachment is slight considering the size of the property involved. It has resulted, however, in various frictions far out of proportion to the value of the disputed area.

The record is replete with evidence of what might be termed the “pushings and shovings” of the parties in the disputed area. A detailed statement of these difficulties is unnecessary, but the dispute has been fueled by these bickerings. The dispute finally entered the courts by way of a petition filed by plaintiffs. The petition sounded in trespass but prayed for general equitable relief. The defendants filed an answer asserting adverse possession to the fence line and generally denying plaintiffs’ claim. This occurred in October, 1975 to January, 1976. In August, 1976, a stipulation and survey was filed. Omitting the caption, it is as follows:

“It is stipulated and agreed by JOSEPH S. COPE and LUCIA G. COPE, husband and wife, First Parties, and JOHN C. BELTRAM and OPAL L. BEL-TRAM, husband and wife, Second Parties, that

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Bluebook (online)
594 S.W.2d 319, 1980 Mo. App. LEXIS 2406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cope-v-beltram-moctapp-1980.