Opinion
No. 43230.
March 9, 1953.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY.
Charles D. Tudor, Webb City, Ray E. Watson and Watson, Richart Titus, Joplin, for appellants.
Roy Coyne, Joplin, Max Glover, Webb City, for respondents.
This is an ejectment action filed in the circuit court of Jasper County, Missouri, where in the appellants contend that respondents have unlawful possession of an approximate north four foot strip of lot 313 in Byers and Ball's Addition to Webb City, Missouri. Respondents' answer stated that they are the legal owners of lot 314 in Byers and Ball's Addition, and that appellants' predecessors in title erected a garage upon the south four feet of that lot and are unlawfully withholding from respondents the possession thereof. Respondents filed a counterclaim to appellants' petition in which respondents state "that even if it should be found that they are in possession of the North Four (N4') Feet of said lot 313, which Defendants deny, that they are entitled to the same" for the reason that they have been in adverse possession of the tract of land for more than 31 years.
The trial court's decree found the issues in favor of respondents upon appellants' petition, and also found that respondents are entitled to have title to the north four feet of lot 313. The court further found the issues in favor of appellants upon respondents' counterclaim.
Only the appellants have appealed from the judgment of the trial court. By their testimony respondents and their predecessors in title claimed to own only lot 314 and appellants and their predecessors in title claimed to own lot 313; therefore, the trial court correctly denied any relief to respondents on their counterclaim.
The deed conveying title to appellants described the land as "all of Lot Numbered Three Hundred Thirteen (313) in Byers and Ball's Addition to the city of Webb City, Jasper County, Missouri." Respondents are the owners of lot 314 and 2.5 feet off of the south end of lot 315 of Byers and Ball's Addition. Under the record before us, the only issue necessary to determine is the location of the boundary line between lot 313 and lot 314.
The evidence shows that Byers and Ball's Addition to Webb City was platted in the year 1877 and the plat was filed in the office of the recorder of deeds in Jasper County, Missouri, on April 14, 1877.
According to this plat, this addition is bound by Galena Street on the north, Fourth Street on the south, Oronogo Street on the west and Liberty Street on the east. Ball Avenue is the second street east of Oronogo and the second street west of Liberty Street. Third Street is the first street north of Fourth Street. Lots 313 and 314 of the addition in question face east on Ball Avenue and are between Third and Fourth Streets. According to this recorded plat, lots 308 to 316 inclusive lie between Fourth Street and Third Street and face on Ball Avenue. Lot 308 is just north of Fourth Street while lot 316 is just south of Third Street. This plat shows the figures "50" on each lot between Fourth Street and Third Street that faces on Liberty Street except the lot just south of Third Street. The figures on that lot are "33.6." There are no figures shown on the plat that would indicate the width of the lots facing on Ball Avenue, but the evidence is undisputed that all of these lots are 50 feet wide except lot 316, and looking at this recorded plat only, this lot appears to be 33.6 feet wide.
However, according to the survey made by witness E. S. Glenn, who was county surveyor in 1949, lot 316 is 36.46 feet wide. He testified that in making this survey he found the south section line of Section 18, Township 28, Range 32. According to the recorded plat of 1877, this section line is the center of Fourth Street. This fact is not disputed in this record. Glenn testified that he measured 30 feet from the south line of this section to the south line of lot 308. He than measured fifty feet each for lots 308, 309, 310, 311, 312 and 313. There he found the dividing line between lots 313 and 314. This was 330 feet north of the south line of the section line in question.
We find the same result if we rely upon the recorded plat of 1877. That plat shows that from the south line of this section to the south line of lot 308 is 30 feet. This south section line is the center of Fourth Street. This plat also shows that each lot from 308 to 313 inclusive is 50 feet wide. Therefore, if we take the 30 feet shown on this recorded plat from the south section line and add to that 300 feet for the six lots from lot 308 to 313 inclusive, we find the north line of lot 313 to be 330 feet north of the south section line shown by this plat. So the same result is obtained whether we rely upon the evidence of Glenn and the plat prepared by him or upon appellants' exhibit B which is the recorded plat of 1877.
But the appellants contend that the measurement should start at the northeast corner of lot 316 and be measured south 133.6 feet to get the north line of lot 313. They contend that, according to the plat, lot 316 is only 33.6 feet wide and lots 315 and 314 are each 50 feet wide. If it is true lot 316 is only 33.6 feet wide, then using the method that appellants suggest, we would arrive at the same point as if we use the method we have previously outlined. However, if lot 316 is actually 36.46 feet wide, as shown by the testimony of two surveyors, and not 33.6 feet wide, then we would get the north line of lot 313 approximately 3 feet north of where it should be. Using this method, it would change the boundary lines of all the lots in this block.
This recorded plat is to be taken as a whole, and is not to be taken to pieces. The rights of the individuals, insofar as they are derived from the plat, date from its filing. Dolphin v. Klann, 246 Mo. 477, 151 S.W. 956. Therefore, we must look at the plat as a whole.
In the case of Sandusky v. Anderson, Mo.App., 208 S.W. 471, loc. cit. 471-472, the court said:
"It seems to us to be apparent that plaintiff has assumed and seeks to have us declare that, because there is found the figures `35' at the end of lot 19 as shown on the plat, it showed that the lot was 35 feet in width. These figures cannot be allowed to control the fact that only lot `19' was conveyed, without regard to the number of feet in width it contained. It may be conceded that reference in the deed to the plat of the addition made such plat a part of the deed, and yet plaintiff will gain nothing by the concession."
It, therefore, follows that if lot 316 is actually not 33.6 feet wide as shown by the plat but is in excess of 36 feet wide, the figures shown on the plat must give way to the actual measurements.
Appellants rely upon the case of City of Laddonia v. Day, 265 Mo. 383, 178 S.W. 741, and Mothershead v. Milfeld, Mo.Sup., 236 S.W.2d 343, to sustain their position that they can rely upon the recorded plat to show that lot 316 is only 33.6 feet wide. In both those and similar cases the recorded plats showing the lots and streets could not be located by government surveys, but since both plaintiffs and defendants claimed title under the recorded plats they would be bound by the plats. However, in the case at bar, the recorded plat can be located by government survey.
The judgment of the trial court is reversed and the cause remanded with directions that the trial court enter a new judgment in accordance with this opinion.
All concur.