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02/20/96 RAY OLLISON AND HELEN OLLISON v. VILLAGE

February 20, 1996

RAY OLLISON AND HELEN OLLISON, RESPONDENTS,
v.
VILLAGE OF CLIMAX SPRINGS, APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable James A. Franklin, Jr., Judge.

Benton, Price, Limbaugh, Covington, White, J.j., Hoff, Sp.J., and Kennedy, Sr.J., concur. Holstein, C.j., and Robertson, J., not sitting.

en banc

PER CURIAM *fn1

In 1991 plaintiffs Ray Ollison and Helen Ollison, husband and wife, brought this quiet title action against defendant Village of Climax Springs, a municipal corporation ("the Village"), and other defendants. The Village was the only defendant that appeared and defended.

The petition sought a judgment declaring that plaintiffs have title in fee simple absolute to a tract of land, described by metes and bounds, in Camden County ("the Ollison property"). The petition alleged that plaintiffs based their claim of title on a recorded deed and on adverse possession. The petition also alleged that plaintiffs and their predecessors in title "have maintained a fence on the east boundary of [the Ollison property] for a period of 60 years."

The answer of the Village admitted that it was a municipal corporation, and denied most of the other allegations in the petition. Paragraph 9 of the answer reads:

9. That [the Village] is the holder of an easement for public use, subject to a possibility of reverter to Climax Springs Association. Said parcel is designated as City Spring Park, as shown by the plat of Climax Springs filed at Plat Book 1, page 14, Records of Camden County, Missouri, and if the plaintiffs are claiming some interest in and to said park, [the Village] is making an adverse claim to these plaintiffs.

The answer also alleged: plaintiffs' claim was "barred by res judicata" by reason of judgment entered on December 19, 1984, in a prior action [Case I]; plaintiffs' claim "is barred for the reason that the same was a compulsory counterclaim in [Case I], and the matter was not raised at that time"; plaintiffs are the owners of Block Fifteen "of the town of Climax Springs and [the Village] makes no claims to Block Fifteen"; and plaintiffs' claim is one of adverse possession and if their claim includes any land not within the boundaries of Block Fifteen, then the same is barred for the reason that adverse possession will not run against [the Village]."

The answer was accompanied by a counterclaim in which the Village alleged that it was "the owner of and entitled to possession of the following described property, located in Camden County, to wit: All of Spring Street, Jackson Street, Park Street, Murry Street, and City Spring Park as shown by the plat of the town of Climax Springs" and "that the plaintiffs are unlawfully withholding possession of portions of the above described real estate." The counterclaim prayed judgment against the plaintiffs "for recovery of said real estate."

A nonjury trial was held on March 17, 1993. Plaintiffs' witnesses were plaintiff Ray Ollison and land surveyor Eddie Whitworth. The Village's witness was land surveyor Dexter Slagle. The trial court found the issues in favor of the plaintiffs, and against the Village, on the petition and on the counterclaim.

The judgment found that plaintiffs were the legal owners of the Ollison property and the Village "has no interest in or to the Ollison property by virtue of the Plat of Climax Springs recorded in Plat Book 1 at page 14 of the Deed Records of Camden County, Missouri, or by virtue of any other legal document or by any legal or equitable right." The judgment also recited that title to the Ollison property was vested in plaintiffs "by virtue of § 516.010, *fn2 and by virtue of [the Village's] lack of any legal or equitable interest therein." The Village appeals.

The Village's first point is that the trial court erred in not dismissing the action because plaintiffs' claim was barred, on res judicata principles, by the judgment in Case I, and because plaintiffs' claim was barred by failure to assert it as a counterclaim in Case I. The fatal flaw in this point is that Case I did not involve the title to the Ollison property.

Res judicata is an affirmative defense. Rule 55.08. Although the Village's answer pleaded that defense, there was no evidence to support it. Case I involved the title to City Spring Park. The instant petition made no claim to City Spring Park, and the trial theory of the Village was that the Ollison property was west of City Spring Park and that the two tracts are separate and distinct.

"The doctrine of res judicata applies to judgments in quiet title actions. Randall v. Schmidt, 159 S.W.2d 637, 639 (Mo. 1941); Hutchinson v. Patterson, 226 Mo. 174, 126 S.W. 403, 404-05 (1910); Autenrieth v. Bartley, 238 Mo. App. 55, 176 S.W.2d 546 (1943)." Moore v. Beck, 664 S.W.2d 15, 18[6] (Mo. App. 1984).

Section 527.150 deals with actions to quiet title. Although the statute does not specifically state that the petition must describe the land involved, it uses such terms as "title, estate or interest in such property" and "the estate, title and interest of said parties, respectively, in such real estate" and adJudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property." (emphasis added).

Missouri case law requires that the petition and judgment describe the land involved. "It is universally held that judgments should describe with reasonable certainty the land adjudicated therein, both in ejectment and actions to determine title." Curd v. Reaban, 232 S.W.2d 389, 391 (Mo. 1950). Similarly, in Hartvedt v. Harpst, 173 S.W.2d 65, 68[6] (Mo. 1943), an action to quiet title, this Court said: "If the real estate in controversy could not be identified from the description given in the petition, no cause of action was stated."

In order to have estoppel by a former judgment (res judicata), four elements must be present. King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. banc 1991). The first element is "identity of the thing sued for," which is alternatively stated as "subject matter of the suit." Barkley v. Carter County State Bank, 791 S.W.2d 906, 910 (Mo. App. 1990); see also Winter v. Northcutt, 879 S.W.2d 701, 708 (Mo. App. 1994); 46 Am. Jur.2d Judgments § 531; 50 C.J.S. Judgments § 652. The first element is absent here.

The appeal of Case I is reported in Village of Climax Springs v. Camp, 681 S.W.2d 529 (Mo. App. 1984). In Case I, the Village sought to quiet title to "City Spring Park." The plat of the Village of Climax Springs, which was received into evidence without objection in the instant action as Exhibit C, was also received into evidence in Case I. In Case I the court of appeals held that title to City Spring Park was vested in the Village by dedication, and that the public would not lose its interest merely by neglect or failure to care for the park.

A judgment in an action to quiet title "affects only the land directly involved." 50 C.J.S. Judgments § 738. In successive quiet title actions involving the same parties or their privies, a judgment in the first action is not res judicata with respect to the second action if the land involved in the second action is separate and distinct from the land involved in the first action. Farrell v. Brown, 111 Idaho 1027, 729 P.2d 1090, 1094[4] (Ida. App. 1986); Girard Trust Co. v. McGeorge, 128 N.J. Eq. 91, 15 A.2d 206, 212 (N.J.Ch. 1940); Penrose v. Absecon Land Co., 94 N.J. Eq. 436, 120 A. 207, 208[4] (N.J.App. 1923); Lawrence v. Ayres, 206 Okla. 218, 242 P.2d 142, 146[2] (Okla. 1952) (overruled on other grounds by Gardner v. Jones, 309 P.2d 731 (Okla. 1956)); Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347, 351[5] (Tex. 1899). See also State by Price v. Magoon, 75 Haw. 164, 858 P.2d 712, 725 (Haw. 1993); Hangman v. Bruening, 247 Neb. 769, 530 N.W.2d 247, 249[3] (Neb.1995); Valdez v. Smith, 38 N.M. 345, 32 P.2d 1022 (N.M. 1934); Hanrick v. Gurley, 93 Tex. 479, 56 S.W. 330[1] (Tex. 1900); Restatement, Second, Judgments § 30.

This Court holds that the judgment in Case I is not res judicata with respect to this action because the land involved in Case I was separate and distinct from the land involved in this action. For the same reason, the Village's argument that plaintiffs' claim was barred by failure to assert it as a counterclaim in Case I has no merit.

Rule 55.32(a) provides, in pertinent part: "A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. . . ." The subject matter of Case I is not the subject matter of this action. See Farrell, 729 P.2d at 1094[4]. The Village's first point has no merit.

The Village's second and third points will be considered together. The Village contends that the trial court erred: (2) in ruling that plaintiffs held title to the Ollison property by virtue of § 516.010, the ten-year statue of limitations, because § 516.090 *fn3 rendered § 516.010 inapplicable in that plaintiffs were estopped from denying the existence of the streets shown on the plat (Exhibit C) because plaintiffs received their deed to Block Fifteen as described in the plat and thereby approved and adopted the plat; (3) in rejecting Exhibits D and E, two surveys made by surveyor Slagle, and his testimony concerning the same, because the evidence was admissible under § 60.150.

Plaintiff Ray Ollison testified that he and his wife Helen received a deed for "all of Block 15 of the original plat of the Town of Climax Springs, Missouri," in February 1989. He testified that in September 1990, persons acting on behalf of the Village tore down the eastern fence on the Ollison property. He employed surveyor Eddie Whitworth, the Camden County surveyor, to make a survey of the Ollison property and to provide a metes and bounds description of it.

Ollison further testified: My parents bought the Ollison property in 1928; since then, the Ollison property has been fenced; the fences have never been located other than where they are now; in September 1990 [the Village] tore down the fence on the east side of the Ollison property; the deeds under which I claim described the Ollison property as Block 15; none of the deeds indicated ownership of anything other than Block 15.

Whitworth testified: I could not tell where Block 15 was. We could not use the old plats to reproduce Block 15 because the original plat is not tied to any original government corners. In that survey, I did not attempt to locate the City of Climax Springs. None of what I have done would help anybody locate Block 15. I see no scale on Exhibit C, the plat of Climax Springs. My survey (plaintiffs' Exhibits 6-A and 6-B) "ties to a government corner."

During his direct testimony, Whitworth referred to measurements he had drawn with respect to "two Southwestern Bell disks that we tied to because we wanted to get something close to our property." He said that he did not use the Southwestern Bell monuments to determine where the government corner or the Ollison property were located. He said he could not use those monuments to locate any city streets, but he used them "to get into town," and "to get a fixed monument within a town" because they were "immovable objects."

Exhibit C, offered by the Village and received into evidence without objection, is a document entitled "Plat of the Town of Climax Springs," filed for record January 4, 1915. It also bears the date of October 28, 1895, as attested by "Henry Laswell, Recorder." Laswell's certificate states that the plat is "a true copy of the record of the plat of the survey of the original town of Climax Springs and of eastern and western additions thereto as the same appears of record in my office."

According to Exhibit C, Block 15, the land described in plaintiffs' deed and chain of title, consists of eight lots: Lots 113 through 120. Lots 113 through 116 front on and lie west of Spring Street. Lot 114 is immediately north of Lot 113, Lot 115 immediately north of Lot 114, and Lot 116 immediately north of Lot 115.

Lot 117 is the northernmost of the other four lots and lies west of Lot 116. Lot 118 lies west of Lot 115, Lot 119 west of Lot 114, and Lot 120 west of Lot 113. The four western lots are separated from the four eastern lots by an alley. No specific dimension is stated for the width of the alley or of Spring Street.

Exhibit C does not state whether it is drawn to scale. It does state that all eight lots on Block 15 are "66 feet x 132 feet." It is clear that the 66 feet measurement is from north to south, and the 132 feet measurement from east to west for each lot. The eight lots in Block 15 have a total area of 69,696 square feet. The area of the Ollison property substantially exceeds 69,696 square feet.

The Village's only witness was Dexter Slagle, a registered land surveyor. Slagle testified: I was hired by the Village to do a survey establishing street lines and block corners in Climax Springs. In preparing my survey, I relied on prior surveys of parcels within and adjacent to Climax Springs, deeds of property located within Climax Springs, and Exhibit C. This is the type of information normally relied upon in making surveys. I prepared a plat of that survey, Exhibit D. I tied my starting point to an established government corner, the Northeast corner of section 30. From there I proceeded to locate other things within the Village, including monuments on the corner of the Southwestern Bell lot. I ...


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