Weber v. Johannes

673 S.W.2d 454, 1984 Mo. App. LEXIS 3780
CourtMissouri Court of Appeals
DecidedMay 15, 1984
DocketNo. 13042
StatusPublished
Cited by4 cases

This text of 673 S.W.2d 454 (Weber v. Johannes) 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
Weber v. Johannes, 673 S.W.2d 454, 1984 Mo. App. LEXIS 3780 (Mo. Ct. App. 1984).

Opinions

HOGAN, Judge.

By an amended four-count petition filed May 16, 1980, plaintiffs sought: 1) to quiet title to a particularly described tract of realty located in the north one-half and part of the southeast quarter of Section 2, Township 27 north, Range 31 west in Jasper County; 2) to eject defendants from part of the premises particularly described; 3) to recover for wrongful removal of timber from part of the tract claimed by the plaintiffs, and 4) to replevy 25 head of cattle. By amended answer filed, incorporating a counterclaim asserted in an abandoned answer, defendants put the cause at issue. On May 25, 1982, the cause was tried to the court sitting without the aid of a jury. The trial court found for the plaintiffs and against the defendants on the first three counts; it further found for the defendants and against the plaintiffs on the fourth count. Defendants appealed. As presented in this court, the case is a boundary dispute between two adjoining riparian landowners.

Plaintiffs’ evidence was that the incident out of which this controversy arose developed in September 1974. For some time, the location of the boundary between plaintiffs’ and defendants’ farms — a creek which begins as Jones Creek and becomes Jenkins Creek — had been in dispute.

Plaintiff Billie Weber discovered that chain saws were being operated on what he considered the lower end (south part) of his property. Upon inspection of the area, Weber discovered some men cutting trees. Weber asked who had given the men permission to cut the trees. He was told “Johannes.” Weber told the men the trees were on his property and that they should quit cutting the trees. The men said they would do so. Trees were down in several areas, but they were all taken from land which lies north of the Jones-Jenkins Creek. The men left, stating they would contact Mr. Johannes.

The parties had had some problems with stray livestock before the logs were cut. At that time plaintiff Billie Weber and Johannes had a conversation, in the course of which Weber had asked Johannes “... if we could get together, survey [their boundary], get some fence built, [and] keep the cows on the sides they belonged].” Johannes’ response was “ ‘[n]o survey and no fence.’ ” After the timber was cut, the plaintiffs took counsel and filed suit, but, according to Weber, Johannes continued to cut timber from the disputed tract.

After suit was commenced, the controversy remained more or less dormant for a considerable period of time. Plaintiffs finally obtained new counsel, the pleadings were amended, and by May 1981 the cause stood at issue. For whatever reason, the case was not tried until May 25, 1982.

Upon trial, the parties concentrated their attention and their proof upon the location of Jones and Jenkins Creeks. The plaintiffs relied heavily on the testimony of a licensed surveyor, his survey, and aerial photographs obtained from the Department of Agriculture. We have concluded that some kind of reproduction of the survey is essential to an understanding of this opinion. Lacking the means to undertake a literal reproduction of the survey — received [457]*457as plaintiffs’ exhibit 1 — we include a rough sketch simply to illustrate the thrust of the evidence and the conclusions which might be drawn therefrom.

[[Image here]]

To relate the sketch to the controversy, we may explain that the unbroken line which runs irregularly from the northwest corner of the SW Vi of the NW Vi to a point on the east section line in the SE Vi of the SE Vt of the section represents Jones Creek from the point of beginning to the point marked “JJ”; from “JJ” to the east section line, it represents Jenkins Creek. The “disputed area,” a term coined by defendants’ counsel, represents the area from which the timber was taken and concerning which some of the muniments of title are ambiguous. The “X” represents a former confluence of Jones and Jenkins creeks hypothesized by the defendants.

The competency of the survey in general and the testimony of the surveyor, a Mr. Walker, is challenged by the defendants on this appeal. As briefed, the contention is merely that the trial court received speculative evidence, but in view of the parties’ and the trial court’s reliance on the survey, it is appropriate to note that the survey was made by or under the supervision of a licensed surveyor, whose [458]*458qualifications were admitted by the defendants. A foundation for the admission of the survey was laid by showing that Mr. Walker had been a surveyor for 27 years; he was a registered surveyor; he was familiar with the land he had surveyed, and he had inspected the deed records of the county. Mr. Walker’s survey appears to have been made in accordance with the provisions of Chapter 60, RSMo 1978, concerning surveys. In our opinion the correctness of the survey was established by competent evidence, and the statutes do not prohibit the introduction in evidence of properly prepared surveys made by private surveyors or by any public surveyor. Chostner v. Schrock, 64 S.W.2d 664, 666[7] (1933); Hopper v. Hickman, 145 Mo. 411, 46 S.W. 973 (1898). Further, even private surveyors may testify from surveys they have made, and their evidence is competent; the weight to be accorded such testimony is for the trier of fact. State v. Turpin, 196 S.W.2d 798-99[l, 2] (Mo.1946). To answer the specific and very narrow contention made by the defendants, it is sufficient to say that the witness was simply called on to state what he had seen on the ground; under the rule just stated, the trial court properly allowed him to answer.

Points III and IV are directed to the sufficiency of the evidence. As stated, the two combined points are: “The [trial] court erred because its finding and judgment that the survey is the correct boundary of [the plaintiffs’] property is against the greater weight of the evidence because it is in conflict with the testimony of witnesses who lived in the area; owned land in the area; had families owning land in [the] area and who were acquainted with floods which made [the] cut from [the] old channel of Jenkin[s] Creek to Jones Creek, referred to in the deeds in evidence and [plaintiffs’] exhibit 1, from what was the old channel to the alleged present channel. The judgment is without support as to the location of Jenkins Creek channel from the turn of the century to date as described in the deeds in evidence, and further, the court erred in finding that the alleged Jenkins Creek had always been an overflow channel. [This] particularly is so when consideration is given to exhibits] A2-E2 offered in [the] motion for new trial.”

Shorn of its redundancy and as developed in the “argument” part of the defendants’ brief, these assignments of error amount to an invitation to reverse the judgment of the trial court by reading through and evaluating the parties’ deeds much as a title attorney would examine an abstract and furnish a title opinion. Implicit in this argument is the further contention that some of the conveyances in plaintiffs’ chain of title should be rejected because parts of the description are latently ambiguous and, taken as a whole, the descriptions of the parties’ land, taken from the various deeds, overlap.

We reject the notion that because the description of one of the tracts claimed by the plaintiffs is ambiguous,1 the deed to plaintiffs must be held to convey no estate whatever. It is elementary that a description in a deed is intended merely to furnish the means of identifying the parcel conveyed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Rolla v. Armaly
985 S.W.2d 419 (Missouri Court of Appeals, 1999)
Whiteside v. Rottger
913 S.W.2d 114 (Missouri Court of Appeals, 1995)
Podlesak v. Wesley
849 S.W.2d 728 (Missouri Court of Appeals, 1993)
E.D. Mitchell Living Trust v. Murray
818 S.W.2d 326 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
673 S.W.2d 454, 1984 Mo. App. LEXIS 3780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weber-v-johannes-moctapp-1984.