text:
    Christina SCHUPMANN, A Minor, by Jo Ellen SCHUPMANN, her next friend, Plaintiffs-Appellants, v. EMPIRE FIRE AND MARINE INSURANCE COMPANY, a corporation, Defendant-Respondent.
    No. 48977.
    Missouri Court of Appeals, Eastern District, Division One.
    March 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 1985.

      Lawrence J. Permuter, Clayton, for plaintiffs-appellants.
    Daniel T. Rabbitt, St. Louis, for defendant-respondent.
   KAROHL, Judge.

Appellant appeals trial court dismissal of her first amended petition for failure to state a cause of action. The first count of the petition alleges slander per se based on a question concerning whether appellant, a minor, had entered the hospital for pregnancy. The second count asserts invasion of privacy based on the same question.

To prevail on this count of slander per se plaintiff must show that the words taken alone without innuendos impute the unchastity of the minor. Brown v. Kitterman, 443 S.W.2d 146, 153 (Mo.1969). We construe the petition in favor of the pleader and examine it to see if there is any ground for relief. Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629-30 (Mo.App.1975). Defendant’s agent in the course of investigating an insurance claim concerning plaintiff’s mother asked appellant’s neighbor, “Was pregnancy the reason for [the minor] going there [to a hospital]?” This is not an assertion of a fact but rather a question. It invites an answer of “yes,” “no” or “I don’t know.” Since there is no implication that the questioner believed the minor was pregnant this case can be distinguished from Hunt v. Gerlemann, 581 S.W.2d 913 (Mo.App.1979) where the insured asked the plaintiff “How did you set the fire?” While this question may have been outside the proper scope of the investigator’s inquiry (a question we need not decide) it does not on its face impugn the minor’s chastity. As we noted in Hunt v. Gerlemann, 581 S.W.2d at 915 whether a statement is slander per se “depends, among other factors, upon the temper of the times, [and] the current of contemporary public opinions ...” Id. quoting Mencher v. Chelsey, 297 N.Y. 94, 100, 75 N.E.2d 257, 259 (1947). The question here taken without innuendos, does not indicate or imply that the minor may have been pregnant or otherwise unchaste. We affirm the dismissal for failure to state a cause of action on Count I.

Petitioner’s second cause of action alleges defendant invaded plaintiff’s privacy by asking whether her hospitalization was due to pregnancy. Invasion of privacy is a legal term which describes four different torts: (1) unreasonable intrusion of plaintiff’s seclusion; (2) use of another’s picture or name; (3) unreasonable publicity to an individual’s private life; and, (4) publicity that unreasonably places an individual in a false light before the public. Sofka v. Thal, 662 S.W.2d 502, 510 (Mo. banc 1983). See also Restatement (Second) of Torts § 652A (1977).

Plaintiff argues that her claim is based on the unreasonable intrusion upon the seclusion of another. To make a sub-missible case under this theory plaintiff must prove “(1) the existence of a secret and private subject matter; (2) a right possessed by plaintiff to keep that subject matter private; and (3) the obtaining of information about the subject matter by defendant through some method objectionable to the reasonable man.” Corcoran v. Southwestern Bell Telephone Company, 572 S.W.2d 212, 215 (Mo.App.1978). Publicity is not required for a submissible case under this theory. Sofka v. Thal, 662 S.W.2d at 510.

We interpret plaintiff’s pleading in a light most favorable to plaintiff to determine if there is any ground for relief. If so a dismissal is improper. Mason v. Williams Discount Center Inc., 639 S.W.2d 836, 838 (Mo.App.1982). The reason one enters a hospital is a private matter. See Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 295 (1942). Assuming without deciding that the physician patient privilege establishes that plaintiff has a right to keep this subject matter private plaintiff fails to state a cause of action on this theory because the asking of the question here was not an unreasonable method to obtain information. The question may have been beyond the scope of the investigation (a matter we do not decide) but it did not assume or suggest the reason for plaintiff’s hospitalization. In Sofka v. Thal, 662 S.W.2d at 511 the supreme court held that six to eight polite telephone calls was not an offensive intrusion. The Restatement (Second) of Torts, relied on by the supreme court in Sofka indicates that a defendant “is subject to liability ... only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.” § 652B Comment C (1977). Asking one non-assuming question of one neighbor is not sufficient to constitute an intrusion into the private seclusion around plaintiff’s affairs. The other forms of invasion of privacy require publication and there was none here. The trial court dismissal for failure to state a cause of action is affirmed.

PUDLOWSKI, P.J., and GAERTNER, J„ concur.


source: Caselaw Access Project

author: CROW, Judge. PREWITT, Chief Judge.

license: Public Domain

text:
    Joe N. BASORE and Ann Basore, Appellants and Cross-Respondents, v. David JOHNSON, Respondent and Cross-Appellant, v. Robert S. EDWARDS and Izella Edwards, Third Party Defendants, v. Leonard WELLS and Geneva Wells, Intervenors.
    Nos. 13752, 13756.
    Missouri Court of Appeals, Southern District, Division Two.
    March 19, 1985.
    Motion for Rehearing or Transfer Denied April 4, 1985.

      Abe R. Paul, Pineville, and John Sims, Ruyle, Sims & Lampo, Neosho, for Joe N. Basore and Ann Basore.
    Herbert Douglas, Douglas, Douglas & Johnson, Neosho, for David Johnson.
   CROW, Judge.

These consolidated appeals arise from a suit by Joe N. Basore and his wife, Ann, (“plaintiffs”) against David Johnson (“Johnson”) concerning real estate in McDonald County. The assignments of error are easier stated after a synopsis of the significant facts.

By warranty deed executed April 3,1962, Robert S. Edwards and his wife, Izella, (“the Edwardses”) conveyed — using an intricate metes and bounds description — certain land to Jesse W. Barnett and his wife, Kathryn, (“the Barnetts”). For the purpose of this opinion, it is sufficient to refer to the land conveyed by that deed as “tract A.” At the time the Edwardses conveyed tract A to the Barnetts, the Edwardses owned other land adjacent to tract A. This adjacent land is identified hereafter as “tract B.” The deed provided, among other things, that “as a further part of the consideration herein, the grantors covenant and agree with the grantees that no additional buildings shall be placed on [tract B].”

Fourteen years later, on July 8,1976, the Edwardses, by warranty deed, conveyed tract B to Johnson. This deed made no mention of the covenant regarding tract B that appeared in the 1962 deed by which the Edwardses had conveyed tract A to the Barnetts.

Twenty-one months thereafter, by warranty deed executed April 24, 1978, the Barnetts conveyed tract A to plaintiffs. This deed was also silent regarding the tract B covenant in the 1962 deed from the Edwardses to the Barnetts.

In early 1979, Johnson erected a rectangular building, measuring 60.5 feet east and west by 41 feet north and south, along the north boundary of tract B. At that location, tract B abuts tract A, the north boundary of tract B being the south boundary of tract A.

A survey several months later by Howard L. Pratt, a licensed surveyor, revealed that Johnson’s building, at its northwest corner, encroaches 4.06 feet on tract A, and at its northeast corner the building encroaches 5.99 feet on tract A.

Plaintiffs filed a two-count petition against Johnson. Count I prayed for the ejectment of Johnson from that portion of tract A occupied by Johnson’s building, and for money damages. Count II alleged that tract B was subject to the covenant in the 1962 deed by which the Edwardses had conveyed tract A to the Barnetts. Johnson, according to Count II, violated that covenant by erecting the building. Count II prayed for an order commanding Johnson to remove the entire building or, in the alternative, an award of money damages.

Johnson answered plaintiffs’ petition with sundry affirmative defenses that need not be recounted. Later, Johnson filed a third party petition against the Edwardses which, as amended, asserted that the Ed-wardses’ deed to Johnson “warranted the title” to tract B, and that the Edwardses were thus liable to Johnson for any damages assessed against him in favor of plaintiffs.

Plaintiffs, through discovery, acquired information that one Leonard Wells held a leasehold interest in Johnson’s building. Consequently, plaintiffs moved to add Wells as a defendant. Wells and his wife, Eva, thereafter intervened, alleging that they had leased the building from Johnson “with option to purchase” and that they had made “substantial improvements thereon.” Besides pleading several affirmative defenses to plaintiffs’ claims, the Wellses filed a cross-claim against the Edwardses based on the warranty in the Edwardses’ deed to Johnson, seeking damages from the Edwardses in the event plaintiffs prevailed against Johnson.

It is obvious, of course, that the Ed-wardses would not be liable to Johnson or the Wellses if plaintiffs prevailed against Johnson only on Count I of plaintiffs’ petition, as the deed from the Edwardses to Johnson warranted title only to tract B, and Count I was based on encroachment onto tract A. The Edwardses would be liable to Johnson or the Wellses — if at all— only if plaintiffs prevailed against Johnson on Count II.

The Wellses also filed a cross-claim against Johnson, claiming that should plaintiffs prevail against Johnson, he would be liable to the Wellses for breach of a provision in the lease guaranteeing peaceable possession of the leased premises during the term thereof.

The Edwardses, answering Johnson’s third party petition and the Wellses’ cross-claim, pleaded, among other things, that the covenant in their 1962 deed to the Bar-netts was not meant to be a restriction “running with the land,” but merely an agreement between the parties to that deed.

When the cause was tried, the Wellses failed to appear. According to counsel for plaintiffs and counsel for Johnson, the Wellses’ attorney had indicated earlier that they did not intend to participate in the trial.

Plaintiffs’ evidence included a plat of the survey by Pratt showing the location of the boundary between tracts A and B at the site of the encroachment. This plat (“Exhibit 20”) was the only proof of where that boundary lay. Exhibit 20 was received in evidence over Johnson’s objection, as more fully appears infra.

The trial court entered judgment in favor of plaintiffs and against Johnson and the Wellses on Count I of plaintiffs’ petition. Plaintiffs were awarded possession of that portion of tract A which, according to Exhibit 20, was encroached upon by the north side of Johnson’s building. Plaintiffs were also awarded one dollar as nominal damages.

The trial court entered judgment in favor of Johnson and the Wellses, and against plaintiffs, on Count II of plaintiffs’ petition, ruling that the covenant in the 1962 deed from the Edwardses to the Barnetts “is void and is not a covenant running with the land of defendant Johnson nor a charge or encumbrance thereon.” Consistent with this ruling, the trial court found the issues in favor of the Edwardses and against Johnson on Johnson’s third party petition, and in favor of the Edwardses on the Wellses’ cross-claim against them.

Lastly, the trial court found for Johnson on the cross-claim against him by the Wellses, noting there had been no proof of the alleged lease on which the Wellses’ claim was based.

Plaintiffs appeal (number 13,752) from that portion of the judgment adjudicating Count II of their petition against them. Johnson appeals (number 13,756) from that portion of the judgment adjudicating Count I of plaintiffs’ petition against him.

Appeal number 13,756

We deal first with Johnson’s appeal. His sole assignment of error is that the trial court should not have received Exhibit 20 in evidence, in that plaintiffs failed to prove that Pratt, in making his survey to establish the boundary between tracts A and B, began either (a) at an existent corner of the United States public land survey, as defined by § 60.115(1)-(2), RSMo Supp. 1979, or (b) at a lost corner of the United States public land survey, § 60.115(3), which had been reestablished in accordance with § 60.225. Johnson asserts, and plaintiffs concede, that evidence of a survey which is not definitely shown to have commenced from a corner established by the government or, if lost, reestablished in accordance with statutes, is of no probative force. Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971); Roberts v. Harms, 627 S.W.2d 924, 926[1] (Mo.App.1982); Probst v. Probst, 595 S.W.2d 289, 290-91[2] (Mo.App.1979); Cornelius v. Tubbesing, 593 S.W.2d 609, 610[2] (Mo.App.1980); Wells v. Elder, 544 S.W.2d 258, 259[1] (Mo.App.1976).

Johnson’s assignment of error requires careful study of Pratt’s testimony and Exhibit 20.

As we understand his explanation, Pratt began his survey at a “found stone,” which he identified as the northeast corner of the northwest quarter of the southwest fractional quarter of a certain section, township and range. Although Pratt referred to this as a “center” section marker, we fail to see how it could be, as the center of a standard section is the common point occupied by the southeast corner of the northwest quarter, the southwest corner of the northeast quarter, the northwest corner of the southeast quarter and the northeast corner of the southwest quarter.

Be that as it may, there was no testimony by Pratt establishing that this found stone was a monument, § 60.115(4), placed during the original government survey, § 60.115(6). All Pratt could say about this was, “Well, of course, they set a bunch of stones on corners, in days gone by.”

There was likewise no showing that Pratt had examined the original government survey to ascertain whether the location of the found stone was in fact the corner Pratt believed it to be.

Pratt did testify that he found two “Government Land Office monuments” (hereafter referred to as “GLO monuments”) on the state line between Missouri and Arkansas. The state line, according to Exhibit 20, lies less than 200 feet south of the boundary separating the north side of tract B from the south side of tract A. According to Pratt, he tied his survey to the found stone and the two GLO monuments on the state line.

Pratt described one of the GLO monuments on the state line as “a round head bolt set in concrete,” and said he found it an inch beneath the pavement of a road that “goes right along the state line there.” The second GLO monument on the state line is shown on Exhibit 20 as a half inch iron pin some 2,619 feet west of the bolt. Exhibit 20 identifies both monuments on the state line as corners of quarters of fractional quarters of sections in the same township and range.

In an effort to establish the admissibility of Exhibit 20, plaintiffs presented the testimony of another surveyor, James F. Gore, who was in charge of the surveying for Bella Vista Village, a 24,000 acre development in Arkansas that, according to Gore, “comes to the Missouri state line.”

Gore disclosed that in surveying for Bella Vista in 1964 or 1965, he established the location of the state line in the area shown on Exhibit 20. Gore testified that the sections of land north and south of the state line are fractional sections; thus, “there are no section comers in the sense of a regular section” along the state line. Consequently, explained Gore, his survey established the state line from section corners to the south and to the north of the state line.

Gore said he had compared Exhibit 20 to the “U.S. Government survey,” but he did not produce the latter at trial nor did he indicate whether it and Exhibit 20 agreed. He did, however, reveal that the two points identified by Pratt on Exhibit 20 as GLO monuments on the state line were in fact set during the survey Gore conducted for Bella Vista. These points, according to Gore, were established from “known” government corners north and south of the state line. Gore did not, however, identify any of these “known” government corners by section, township and range, nor did he say how he had verified that these “known” corners had indeed been established by the original government survey.

Asked about the found stone — the starting point of Pratt’s survey — Gore responded that its location was “established or found” by a surveyor named Letz during a 1948 survey. Gore based this testimony on a copy of the plat of Letz’s survey. There was no evidence, however, as to whether the location was identified by Letz as an existent government corner or a reestablished lost corner, or whether, in 1948, Letz found no monument at that point and placed the stone himself, attempting to reestablish a lost corner.

Plaintiffs’ evidence thus failed to demonstrate that the found stone was an existent government corner, § 60.115(2). Furthermore, if it be assumed that the found stone represented an attempt by someone, perhaps Letz, to reestablish a lost government corner, there is no evidence as to how the person who placed that stone determined where it should be put. Absent such evidence, the found stone does not qualify as a statutorily reestablished government corner.

Regarding the two GLO monuments on the state line, it is clear from Gore’s testimony that they were not set during the original government survey, but were instead set during Gore’s Bella Vista survey in the 1960’s. Gore confirmed that at the time of that survey, no monuments from the original government survey could be found along the portion of the state line shown on Exhibit 20. The two GLO monuments are therefore, at best, reestablished lost corners. Consequently, Exhibit 20 has probative value only if at least one of the two GLO monuments meets the criteria of § 60.225 for a reestablished government corner.

Gore testified that in placing the two GLO monuments on the state line, he followed the procedure in paragraphs 3 and 4 of § 60.225, except that the two monuments do not mark “lost standard corners,” inasmuch as the sections abutting the state line are fractional sections, thus “there are no standard corners.” Gore added that for the same reason, there were no section and quarter-section corners on the state line. He insisted, however, that his method complied with paragraphs 3 and 4.

Despite Gore’s avowed effort to comply with § 60.225, we are persuaded that neither of the two GLO monuments on the state line is shown, by the record before us, to have been reestablished in compliance with the statute.

Neither Pratt nor Gore identified any “known” government corner that was used as a reference point in placing the GLO monuments, nor was there any testimony from either of them as to how it was ascertained that any such corner was in fact a government corner. Gore simply said, “[TJhere were original government corners east and west or north and south of here that went into the reestablishment of these points.”

In Cordell v. Sanders, 331 Mo. 84, 52 S.W.2d 834 (1932), two surveyors testified they began their surveys from the southwest corner of a particular section. They admitted, however, that the original corner monument could not be found and that they had assumed their starting point was the section corner because of certain roads and fences. Observing that this testimony was a conclusion of fact rather than evidence thereof, the Supreme Court said, “A surveyor’s testimony is never receivable except in connection with the data from which he surveys, and if he runs lines they are of no value unless the data are established from which they are run, and those must be distinctly proven, or there is nothing to enable any one to judge what is the proper result.” 52 S.W.2d at 839. The surveys were held to be without probative force.

Cordell was cited and followed in Pioneer Cooperage Co. v. Bland, 228 Mo.App. 994, 75 S.W.2d 431 (1934), where there was no proof that the beginning point of the surveys was an established corner. Klinhart v. Mueller, 166 S.W.2d 519, 523 (Mo.1942); Roberts, 627 S.W.2d 924, 926[2], and Barnhart v. Ripka, 297 S.W.2d 787, 791-92[9] (Mo.App.1956), apply the same rule.

We accordingly hold that inasmuch as there was no identification of any government corner — original or reestablished — used by Gore in locating the points where he placed the GLO monuments on the state line, and no evidence explaining how he ascertained that his beginning points, whatever they were, were indeed government corners, the evidence failed to establish that either of the GLO monuments shown on Exhibit 20 meets the criteria for a reestablished government corner. § 60.225. Exhibit 20 was therefore without probative value, and as it was the only evidence showing the boundary between tracts A and B, there was a failure of proof that Johnson’s building encroaches on tract A.

That being so, the portion of the judgment adjudicating Count I of plaintiffs’ petition in their favor must be reversed and the cause must be remanded for a new trial on that count. Roberts, 627 S.W.2d 924; Probst, 595 S.W.2d 289; Burke v. Colley, 495 S.W.2d 699 (Mo.App.1973).

Appeal number 13,752

Plaintiffs maintain the trial court erred in holding that the covenant that no additional buildings shall be placed on tract B was not enforceable against Johnson. This covenant, it will be remembered, appeared only in the 1962 deed by which the Ed-wardses conveyed tract A to the Barnetts.

The trial court ruled that Johnson had neither actual nor constructive notice of the covenant. There was no evidence that Johnson had actual notice, and plaintiffs do not contend otherwise. Instead, plaintiffs rely on the fact that the deed from the Edwardses to the Barnetts was recorded April 25,1962, in the office of the Recorder of Deeds of McDonald County. Plaintiffs, citing § 442.390, RSMo 1978, insist that by reason of the recording, Johnson had constructive notice of the covenant when he acquired tract B in 1976.

It is established by ancient, but viable, authority that a purchaser is bound with constructive notice of all recorded instruments and the recitals therein lying within his chain of title, but a deed or instrument lying outside his chain of title imparts no notice to him. Gross v. Watts, 206 Mo. 373, 104 S.W. 30, 36 (1907); Tydings v. Pitcher, 82 Mo. 379, 384 (1884). Inasmuch as the 1962 deed from the Edwardses to the Barnetts conveyed only tract A, such deed was no link in the chain of title to tract B. The chain of title to tract B, in reverse chronological order, led from Johnson back to the Edwardses and thence to their grantor. The 1962 deed from the Edwardses to the Barnetts, conveying only tract A, lay nowhere in the line of ownership to tract B. The trial court was correct in ruling that Johnson was not charged with constructive notice of the covenant on which plaintiffs based Count II of their petition.

In upholding the trial court on this ruling, we do not overlook King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415 (1910), in which building restrictions contained in a recorded deed by which the developer of a city subdivision conveyed certain lots to one grantee were held binding on a party who, at a later time, acquired different lots in the same subdivision from the same developer. In King, unlike the instant case, certain of the restrictions were shown on the recorded plat of the subdivision and, in addition, the deed conveying the second group of lots provided that they were “subject to all restrictions now of record against same.” 126 S.W. at 418. None of the circumstances in King are present in the case before us.

We are also mindful of Harp v. Parker, 278 Ky. 78, 128 S.W.2d 211 (1939), and Bishop v. Rueff, 619 S.W.2d 718 (Ky.Ct.App.1981), the rationale of which, if applied to the instant case, would hold that because the Edwardses owned tract B at the time they conveyed tract A to the Barnetts in 1962, Johnson, before buying tract B in 1976, should have examined the record of that 1962 conveyance to see whether anything therein purported to affect tract B. Bishop would apparently impose this duty on Johnson even while recognizing that the 1962 deed is not in his chain of title. 619 S.W.2d at 720.

Nothing we have found persuades us that Missouri law imposes such a requirement: Indeed, Judge Howerton’s concurring opinion in Bishop, 619 S.W.2d at 722-23, points out the onerous burden and excessive expense such a requirement could impose on a title examination. Judge Howerton observes that if a landowner sells some of his land to one buyer and they agree that the land retained by the seller shall be subject to certain restrictions, it is far more reasonable for the buyer to require the seller to record a separate instrument imposing the restrictions on the retained land, thereby placing the restrictions squarely in the chain of title to subsequent buyers of the retained land, than it is to require those subsequent buyers, at their peril, to search out and examine all earlier deeds by the landowner to buyers of other portions of his land. Id. at 723.

If buyers of real estate in Missouri are to be charged with constructive notice of restrictions in recorded conveyances outside their chain of title under circumstances such as those in the case before us, it is for the Supreme Court of Missouri, not us, to so hold. As noted earlier, Gross, 104 S.W. 30, and Tydings, 82 Mo. 379, hold that a recorded deed or instrument lying outside a purchaser’s chain of title imparts no notice to him. We adhere to that principle.

As Johnson had neither actual nor constructive notice of the covenant, it was unenforceable against him. Weber v. Les Petite Academies, 548 S.W.2d 847, 851-52[8] (Mo.App.1976); Poage v. Quincy, O. & K.C.R. Co., 23 S.W.2d 221, 225[4] (Mo.App.1930).

The trial court found the covenant unenforceable for a second reason, i.e., that it is in restraint of trade and against public policy, and thereby void. Because we have upheld the trial court’s decision that the covenant is unenforceable against Johnson because he had neither actual nor constructive notice thereof, we need not address the second ground relied on by the trial court.

The judgment is affirmed in all respects except that portion adjudicating Count I of plaintiffs’ petition, which is reversed. The cause is remanded for a new trial on Count I of plaintiffs’ petition only.

HOGAN, P.J., and MAUS, J., concur.

PREWITT, C.J., concurs in number 13756 and concurs in result in number 13752 in separate opinion.

PREWITT, Chief Judge.

I agree with the majority opinion on appeal No. 13756. Although I see some considerations favoring its reasoning on appeal No. 13752,1 respectfully disagree with that reasoning.

I believe that § 442.390, RSMo 1978, imparts notice to Johnson of the contents of the deed from the Edwardses to the Barnetts. The deed conveyed a “negative easement” in tract B. See Tracy v. Klausmeyer, 305 S.W.2d 84, 88 (Mo.App.1957). That deed might not be a “link” in the “chain” of documents by which Johnson acquired his interest in tract B, but it was in his “chain of title” as a document by the record owners affecting that tract. The indexing system required for a recorder of deeds allows a searcher to find the deed under the then record owners’ names. See §§ 59.440 and 59.470, RSMo 1978.

The Missouri cases relied on in the principal opinion involved documents recorded while the grantor did not have record title. In that situation a searcher might not find the deeds as the index would be checked for the name of the record owner during the period of that record ownership.

There are factual differences here with King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415 (1910), but in considering what was within the “chain of title”, the court there concludes that while record title is in a grantor, “it is clear that a purchaser is affected with constructive notice of all duly recorded conveyances by his grantor affecting the latter’s title”. 126 S.W. at 419-420. See also Scurlock, Missouri Law of Land Agreements Which Run with the Fee, 23 K.C.L.Rev. 3, 49 (1954); Kuhn v. Saum, 316 Mo. 805, 291 S.W. 104, 106 (1926).

I believe Harp v. Parker, 278 Ky. 78, 128 S.W.2d 211 (1939), and Bishop v. Rueff, 619 S.W.2d 718 (Ky.Ct.App.1981), referred to in the principal opinion, reached the correct result in finding notice to subsequent owners of a deed by a record owner restricting land retained. That appears to be the majority view. See Annot., 16 A.L.R. 1013 (1922); 20 Am.Jur.2d, Covenants, Conditions, and Restrictions, § 309 at pp. 872-873. See also Jones v. Lambert, 298 S.W.2d 297 (Ky.1957); McLean v. Thurman, 273 S.W.2d 825 (Ky.1954); Guillette v. Daly Dry Wall, 367 Mass. 355, 325 N.E.2d 572 (1975); Beekman v. Schirmer, 239 Mass. 265, 132 N.E. 45 (1921); Howland v. Andrus, 80 N.J.Eq. 276, 83 A. 982 (1912), rev’d on other grounds, 81 N.J.Eq. 175, 86 A. 391 (1913); DiCarlo v. Cooney, 282 Pa.Super. 477, 423 A.2d 3 (1980); Painter v. MacDonald, 427 S.W.2d 127 (Tex.Civ.App.1968), rev’d on other grounds, 441 S.W.2d 179 (Tex.1969).

However, I believe that the result the majority opinion reached was correct. Restrictions in derogation of the fee are not favored. Hall v. American Oil Co., 504 S.W.2d 313, 317 (Mo.App.1973). Applying the principles set forth in Hall, 504 S.W.2d at 317-319, and the cases there cited, I conclude that the restriction here was not enforceable against Johnson. For that reason I concur in the result.

      . Section 60.115, RSMo Supp.1979, was enacted as § 60.005, Laws 1979, pp. 251-52. The number in RSMo Supp.1979 (§ 60.115) was evidently assigned by the Revisor of Statutes. Additionally, this section, as it appears in Laws 1979, contains paragraphs numbered 1 through 10. These paragraphs have been rearranged, and renumbered 1 through 8, in RSMo Supp.1979. AH citations of statutes are to RSMo Supp.1979 unless otherwise indicated.

      . Section 60.225 provides, inter alia:

      (3) Lost standard corners will be reestablished on a standard or correction line by single proportionate measurement on the line connecting the nearest identified standard or closing corners on opposite sides of the lost corner or corners, as the case may be;
      (4) All lost section and quarter-section corners on the township boundary lines will be reestablished by single proportionate measurement between the nearest existent corners on opposite sides of the lost corner; _”

      . Section 442.390, RSMo 1978, provides:
      “Every such instrument in writing, certified and recorded in the manner herein prescribed, shall, from time of filing the same with the recorder for record, impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice.”


author: PER CURIAM.

text:
    Taylor R. REHKOP, Appellant, v. Irma Louise REHKOP, Respondent.
    No. WD 35958.
    Missouri Court of Appeals, Western District.
    March 29, 1985.
    Robert C. Jones, Jones & Frankum, Craig S. Laird, Kansas City, for appellant.
    John J. Phillips, Phillips & Ewan, Independence, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   ORDER

PER CURIAM.

Appeal from a dissolution of marriage. The husband appeals from the grant of maintenance and the division of property.

Affirmed. Rule 84.16(b).


author: KAROHL, Judge.

text:
    Lynman A. STAMPS, Plaintiff-Respondent, v. Bishop Chester A. KIRKENDOLL, Defendant-Appellant.
    No. 48279.
    Missouri Court of Appeals, Eastern District, Division One.
    April 2, 1985.

      Alif Amon Williams, St. Louis, for defendant-appellant.
    Ira M. Young, St. Louis, for plaintiff-respondent.
   KAROHL, Judge.

Appellant, a bishop of the Christian Methodist Episcopal Church, appeals a trial court permanent injunction order that restricted him from “interfering with or barring [respondent] from conducting his ministry, receiving all compensation, allowances and entitlement due him or from exercising any right or duty as the pastor of Parrish Temple Christian Methodist Episcopal Church ...”

The Christian Methodist Episcopal Church (CME) is a religious corporation with member churches throughout the United States, Africa, Jamaica and Haiti. The rules, laws, regulations and organizational structure of the CME religion are set forth in Discipline, a book distributed by the church. At the annual CME conference the bishop assigns each preacher to a parish. The assignment is effective until the next annual conference. In 1981 Bishop Kirkendoll assigned Reverend Stamps to Coleman Temple. In 1982 he was assigned to Parrish Temple. In 1983 he received no assignment. Reverend Stamps admits that the bishop need not reassign a preacher to a parish but maintains that the Discipline requires the bishop to give a preacher sixty days notice if he is to be transferred and he did not receive any notice. This, he concludes, demonstrates that he was wrongfully denied his position as pastor of Parrish Temple. The trial court granted Reverend Stamps an injunction requiring the bishop to reinstate him as pastor of Parrish Temple.

On appeal Bishop Kirkendoll questions the jurisdictional authority of a civil court to assign a minister to a parish. The injunction has that effect. In addition appellant maintains that an injunction was inappropriate because Reverend Stamps’ complaint is a church matter and he failed to follow the CME grievance procedures set forth in the Discipline. Reverend Stamps admits that he did not file an appeal with the church judicial committee but claims that since the appeals committee was improperly formed any action taken by them would not have been valid.

Generally “civil courts have no ecclesiastical jurisdiction and ordinarily cannot question acts of church discipline or the removal of a pastor or member.” Briscoe v. Williams, 192 S.W.2d 643, 646 (Mo.App.1946). However, if the controversy “involves protection of civil or property rights, even though arising out of a religious dispute, the civil courts will exercise their jurisdiction to protect such rights.” Williams v. Wilder, 397 S.W.2d 696, 702 (Mo.App.1965). Assuming without deciding that employment as a church pastor is a protectable property right we nonetheless find that the trial court order was improper.

The Discipline provides that when a traveling preacher is accused of immorality the Bishop should establish a committee to investigate, and, if possible, the accused and the accuser should be brought face to face. If the accused and accuser cannot be brought face to face and the accused evades an investigation he or she is presumed guilty.

In April of 1983 Bishop Kirkendoll received a complaint from members of the Coleman Temple concerning actions of Reverend Stamps. The bishop appointed a committee to investigate the matter. Reverend Stamps was invited to appear before the committee but was unable to attend their first meeting. A formal complaint was filed against Reverend Stamps two days before the annual conference which was to be held in August 1983. At the conference the bishop appointed a committee to investigate the formal complaint. The charges against Reverend Stamps were not read before the conference as required by the Discipline. After the conference the committee met to investigate the charge but Reverend Stamps declined to attend maintaining that he had never received a copy of the complaint against him. Reverend Stamps then filed a petition for an injunction with the civil court.

The Discipline provides for a judiciary council which has the right to hear and determine all appeals of the traveling preachers. Reverend Stamps did not approach the judicial council to appeal the recommendation of the committee or the Bishop’s decision not to reappoint him to a parish.

Reverend Stamps argues that since proper church procedures were not followed (i.e. the charges were never read before the annual conference and he was unable to publicly respond to them) the Bishop’s refusal to appoint him to a parish was improper. However, the CME Church allows a bishop to appoint ministers to a parish or not as he sees fit. There is no requirement that all ministers be assigned a parish. The Discipline requires that all ministers’ character be passed by the conference but does not indicate that all ministers who are passed will be appointed. The requirement of sixty day notice prior to transfer does not require that notice be given if there will be no reappointment. Reverend Stamps was not denied any protected property right because as an employee at will his position could be terminated at any time.

As was noted in Olear v. Haniak, 131 S.W.2d at 380 “when a person becomes a member of a church he thereby submits to ecclesiastical jurisdiction in ecclesiastical matters, and has no legal right to invoke the supervisory power of the civil courts ...” In Briscoe v. Williams, 192 S.W.2d at 649 the court denied the requested injunction because the parties had not exhausted or proceeded with the church remedies. The same is true in this case. Reverend Stamps was not assured of a job as minister. If he was not satisfied with the bishop’s action he should have approached the judicial council and not the civil courts.

Furthermore, a civil court cannot create a position of employment as a minister of a church where, by church law, there can be no such employment. We therefore conclude that the injunction was unauthorized as a matter of law.

Having concluded that the preacher’s position is an employment at will there was no protectable property interest at issue here. The injunction was violative of constitutional guarantees of the separation of church and state functions. U.S. Const. Amend. I. Williams v. Wilder, 397 S.W.2d at 702.

We reverse the trial court order requiring the bishop to reinstate Reverend Stamps as pastor of Parrish Temple CME Church.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . In Olear v. Haniak, 235 Mo.App. 249, 131 S.W.2d 375, 381 (1939) the court noted
      [t]he disposition or removal of a minister or pastor, and the grounds therefor, are purely eccelesiastical matters, and the civil courts will not review the decision of competent eccelesiastical tribunals in regard thereto. Even a court of equity will not consider the question involved until all ecclesiastical remedies have been exhausted. Nor will the civil courts take original jurisdiction of such matters where there are ecclesiastical tribunals competent to deal with them.
      However, in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) the Supreme Court held that long term employment may be a protectable property right which requires a hearing and notice of grounds for non-retention.

      . The law is clear in Missouri that “in the absence of a contract for employment for a definite term or a contrary statutory provision, an employer may discharge an employee at any time, without cause or reason, or for any reason and, in such case no action can be obtained for wrongful discharge." Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 124 (banc 1956).


text:
    Charles R. KRUSE, et ux. and Gregory Boyer, et ux., Plaintiffs-Appellants, v. Floyd C. JOHNSON, et ux., Defendants-Respondents.
    No. 48763.
    Missouri Court of Appeals, Eastern District, Division One.
    April 2, 1985.

      Robert L. Brown, Arnold, for plaintiffs-appellants.
    Gerald T. Hoff, Clayton, for defendants-respondents.
   KAROHL, Judge.

Plaintiff-property owners appeal from a judgment denying their request for reformation of a deed. We affirm.

The deed in question was a general warranty deed from co-plaintiff-grantors Charles and Doris Kruse to defendants Floyd and Jewell Johnson. Plaintiff-property owners, the Boyers, were not parties to the deed which they asked the court to reform.

Kruse and wife developed Heege View Second Addition Subdivision located in St. Louis County, Missouri. In September 1969 they deeded Lot 2 of the subdivision to plaintiffs Gregory and Helen Boyer. Mr. Kruse is Mr. Boyer’s nephew. The Kruses constructed a residence on Lot 2 for the Boyers so that the eastern edge of the house is so near to the east property line of Lot 2 that a 21” lawn mower will not fit between the southeast corner of the foundation and the property line. The property line in the deed is the platted property line between Lots 1 and 2.

The general warranty deed of April 1973 by which Johnson and wife acquired their property from Kruse and wife contains the legal description, “Lot 1, in Block 7 of Heege View Second Addition as per plat thereof recorded in Plat Book 130, Page 89 of the St. Louis County Records.” Subsequently, Johnson constructed a fence between his home on Lot 1 and the Boyer’s home on Lot 2. In the process of erecting the fence Mr. Kruse who happened to be visiting the Boyers advised Mr. Johnson the property line was east of the location of the line shown on the plat and described in both of the deeds from Kruse, one to the Boyers and the other to the Johnsons. The line indicated by Mr. Kruse to Mr. Johnson was three feet east of the southwest corner of Lot 1 and 7.25 feet east of the northwest corner of Lot 1 as shown on the recorded plat and the warranty deeds. Johnson built a wire fence along the line indicated by Kruse. As a result the fence was from 3 to 7.25 feet east of the platted property line and as described on the deeds.

In 1981 the Johnsons had the common property line between Lots 1 and 2 surveyed in order to locate a swimming pool in their back yard. See Exhibit. The survey disclosed that the fence was not erected along the property line. The Johnsons moved their fence to the property line. As a result of the move the fence was only eight inches at its closest point from the Boyer’s home at its southeast corner.

This law suit constitutes an effort by the Boyers to reform the 1973 Kruse-Johnson deed by redescribing the western boundary of Lot 1 to describe the line on which the fence was first built and before it was moved.

The parties did not request findings of fact or conclusions of law and no findings were made. The trial court found however that neither the Boyers nor the Johnsons were at fault in the proceedings. Plaintiffs rely on an error or mistake made by the common grantor Charles R. Kruse and wife. The trial court “dismissed” plaintiffs’ petition for reformation of deed. We construe this to be a judgment in favor of defendants.

The Boyers contend on appeal that the trial court erred in failing to find that there was a mutual mistake of fact between Kruse and wife as grantors and the John-sons as grantees. The Boyers were not parties to the transaction. They also contend that the trial court found that an error was created and caused by Charles R. Kruse which constitutes a mutual mistake in the preparation of the deed and that this finding requires a reformation of the deed.

We review this appeal from an equity judgment on the principles announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “The burden of proof in such case is upon the parties seeking reformation to show by clear, cogent and convincing evidence (1) a preexisting agreement of the parties to describe [the property as prayed] ..., (2) the mistake and (3) the mutuality of the mistake, (citations omitted).” Ethridge v. Perryman, 363 S.W.2d 696, 698 (Mo.1963). The Boy-ers must prove "... both a prior agreement to convey the land within the reformed description and that there was a mutual mistake of fact in the preparation of the deed. There can be no dispute those two elements are the necessary elements for reformation of a deed. Hoffman v. Maplewood Baptist Church, 409 S.W.2d 247 (Mo.App.1966).” Flaspohler v. Hoffman, 652 S.W.2d 703, 708 (Mo.App.1983). “The fact that there is evidence in the record which might have supported a different conclusion, however, does not demonstrate that the decree is contrary to the weight of the evidence.” Stegemann v. Fauk, 571 S.W.2d 697, 700 (Mo.App.1978).

Within these principles we review appellants’ contentions. The Johnsons denied actual notice of the location of the boundary line between Lots 1 and 2 of Heege View Second Addition before purchasing their property and accepting the deed describing the boundary line according to the recorded plat. Sometime thereafter Mr. Johnson erected a fence along the line indicated by Mr. Kruse. On February 22, 1973, two months before the Kruse-John-son deed, Kruse had a surveyor survey a line approximately halfway between the residence of Boyer and the Johnson house. This line was marked by a hatchmark on the sidewalk along the northern line of the property and a flag along the southern line. However, the Johnsons testified they were unaware of the survey or the markings on the sidewalk prior to their purchase of Lot 1. They were not aware of Kruse’s effort to give the Boyers a quit claim deed to the strip of land between the platted western boundary of Lot 1 and the newly surveyed line. This deed was recorded by Kruse on April 23, 1973, eight days after he deeded Lot 1 to the Johnsons. Kruse did this without the knowledge of the Boyers or the Johnsons. Kruse testified that he ordered the survey of a new property line and executed the quit claim deed because the Boyer’s house was too close to the property line. He did not testify that he told either the Johnsons or the Boyers about the new survey or quit claim deed at anytime prior to the Johnson’s purchase. Accordingly there was evidence from which the court could find that there was no preexisting agreement between Kruse and Johnson changing the platted property line which was incorporated into the warranty deed. Further, there was evidence from which the court could find that there was neither a mistake or mutuality of a mistake in the deed to the Johnsons. The intentional acts of Kruse in constructing the Boyer’s home too close to the property line; failing to describe the property line in the Johnson’s warranty deed as re-surveyed; and recording the quit claim deed without notice to the Boyers or the Johnsons may have been his “mistakes” but they do not constitute either a preexisting agreement of the parties or mutuality of mistake. The Johnsons denied any knowledge of these acts and received a deed consistent with their agreement with their grantor.

The original construction of the fence by the Johnsons along the line east of the record property line was not evidence of a mutual mistake affecting their deed from the Kruse’s. It resulted from an intentional misrepresentation by Mr. Kruse and a lack of actual knowledge of the true facts by Mr. Johnson. This does not establish an agreement prior to the deed that the original fence line was the property line. It does not represent proof that Mr. Johnson ever agreed that it was the property line. Mr. Johnson testified that he bought his house “according to the description that was told to me that was listed by the agent.” This description was consistent with the plat and the warranty deed described the lot as platted. Point denied.

We find no merit in appellants’ second contention because it misstates the judgment of the trial court. It contends that the court found a mutual mistake in the preparation of the warranty deed from Kruse to Johnson and a prior agreement to convey an amended Lot 1. The trial court found only that Kruse knew of his error and failed to correct it. The trial court did not find that Johnson agreed to purchase less than Lot 1 as platted or that Johnson was aware of the efforts of Kruse to change the common boundary line between Lot 1 and Lot 2.

We affirm.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


author: GAERTNER, Judge.

text:
    Pete HASAPOPOULOS, and Helen Hasapopoulos, Plaintiffs-Appellants, v. Joyce MURPHY, Defendant-Respondent.
    No. 48781.
    Missouri Court of Appeals, Eastern District, Division One.
    April 2, 1985.

      David E. Wilson, Clayton, for plaintiffs-appellants.
    William F. James, St. Louis, for defendant-respondent.
   GAERTNER, Judge.

This case was instituted as a Chapter 517 suit for damages in a division of the circuit court presided over by an associate circuit judge where plaintiffs obtained a judgment. On trial de novo, the court, without a jury, found for defendant. We affirm.

In 1969, plaintiffs purchased their residence in St. Louis County. Defendant and her husband, who is now deceased, then owned and resided on the property adjoining that of plaintiffs. Three chínese elm trees were then growing on defendant’s property close to the common boundary line. One tree was destroyed in a storm, but the remaining two have grown from 12 to 15 feet in height with trunks of 5 or 6 inches in diameter to 45 or 50 feet in height with 24 or 25 inch trunks. By 1974 plaintiffs began to experience problems from overhanging branches and cracking of their driveway caused by the roots of the elm trees. On three or four occasions over the ensuing years plaintiffs asked defendant and her husband to remedy the situation but received no cooperation. This action was then instituted. After judgment in the original proceeding, and two weeks prior to the trial de novo, plaintiffs paid $275.00 to have the tree branches cut back to the property line and $25.00 to have them hauled away. An expert witness testified the cost of repairing the root damage to plaintiffs’ driveway would be $2,920.00. Plaintiffs testified the value of their property was diminished due to the problems of overhanging branches and the cracking of the driveway in the sum of $5,000.00.

In the trial court and here, defendant’s contention that plaintiffs failed to make a submissible case is founded on the distinction, set forth in the Restatement of Torts, Second, § 839 and 840, between the liability of the possessor of land for damages caused by an abatable, artificial condition and the non-liability for damages caused by a natural condition. A “natural condition” is one that is not in any way the result of human activity. Section 840, Comment to subsection 1. As applied to trees and other vegetation, the distinction is between a growth which results solely from nature and that which is created or cultivated by man. The rationale underlying this distinction is that one who has done nothing to cause a dangerous condition has no duty to remedy it, in contrast to one who has created or contributed to the existence of the condition. Because the evidence in this case is silent regarding the origination or cultivation of the Chinese elms, defendant argues an essential prerequisite to plaintiffs’ right of action is lacking.

Although some jurisdictions have applied the “natural/artificial” dichotomy as a test of liability in encroaching tree cases, e.g., Griefield v. Gibraltar, 24 So.2d 356 (Miss. banc 1946), it has been criticized and rejected by most. See Cornett v. Agee, 143 Ga.App. 55, 237 S.E.2d 522 (1977); Mahurin v. Lockhart, 7 Ill.App.3d 691, 28 Ill.Dec. 356, 390 N.E.2d 523 (1979); Rowe v. McGee, 5 N.C.App. 60, 168 S.E.2d 77 (1969); Barker v. Brown, 236 Pa.Super. 95, 340 A.2d 566 (1975); Sterling v. Weinstein, 75 A.2d 144 (D.C.App.1950). Among the varying reasons for rejecting the rule are the virtual impossibility of obtaining evidence concerning the origin of trees in many instances; the unfairness in imposing liability upon one who plants or nurtures a tree to a stately and aesthetic appearance while excusing one who neglectfully permits the growth of unsightly scrubs; the problems inherent in assessing the effect of human intervention by watering, fertilizing, pruning, etc. For example, should one who treats a diseased or decayed natural tree be liable for the effects of its continued growth while one who does nothing escapes responsibility for the damages caused by its falling branches? A need for divergent application of the “natural/artificial” distinction depending upon locality has also been noted. In non-populous, rural areas the onerous burden of inspecting all vegetation upon large tracts of land to discover developing hazards from natural growth is said to override the slight potential for harm, whereas in urban areas the relative ease of discovery combined with the increased danger renders the converse true. See Cornett v. Agee, supra; Prosser, Law of Torts, 4th edition, page 355.

The only Missouri case to consider the liability of a landowner to his neighbor for property damage caused by encroaching trees is Tanner v. Wallbrunn, 77 Mo.App. 262 (1898). In the circuit court plaintiff obtained a mandatory injunction commanding the defendant to remove a tree, the branches of which were knocking bricks from plaintiff's chimney and causing holes in his roof. The appellate court reversed, holding that since plaintiff had the undoubted right to cut off the offending branches at the property line, it was his duty to do so before resorting to the extraordinary remedy of injunction. Id. at 266-67. Although the opinion does note that the tree was planted by defendant, the decision does not address the “natural/artificial” distinction and, therefore, is of no help in aligning Missouri with either of the divergent views upon Section 840 of the Restatement.

We believe the jurisdictions which have rejected this Restatement basis for distinguishing between liability and non-liability have done so for sound reasons, as set forth above. Moreover, in an action for damages resulting from a nuisance, responsibility flows not only from the creation of the nuisance, but from its continued maintenance as well. Therefore, we reject defendant’s contention that proof of a landowner’s planting or nurturing a tree is an essential element of a plaintiff’s cause of action for damages to his property caused by encroachment of the tree roots and branches.

However, because we are primarily concerned with the correctness of the result below and not the route by which it was reached, Girardeau Contractors, Inc. v. Missouri Highway and Transportation Commission, 644 S.W.2d 360, 363 (1982), we affirm the judgment for defendant.

In addition to the divergent positions taken in other jurisdictions regarding the “natural/artificial” dichotomy, the condition of the tree is viewed by some courts, but not all, as the determinative factor of the liability of the owner of an encroaching tree which causes damage to neighboring property. A few jurisdictions impose such liability even where the tree is healthy and undecayed. See Whitesell v. Houlton, 2 Haw. 365, 632 P.2d 1077 (App.1981); Shevlin v. Johnston, 56 Cal.App. 563, 205 P. 1087 (1922). The better reasoned decisions, however, limit such liability to cases where the owner maintains a tree in a damaged, decayed or diseased condition.

In Cornett v. Agee, supra, recovery was allowed for damages sustained for the fall in a high wind of a 75 to 100 foot pine tree on the basis of the owner’s actual knowledge of the visible rot in the trunk of the tree. The court limited its holding to cases involving trees with patent, visible decay.

The defendant in Mahurin v. Lockhart, supra, was liable for damages caused by the fall of a dead tree branch upon the plaintiff. The court held that “a landowner in a residential or urban area has a duty to others outside his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.” 390 N.E.2d at 524-525 (emphasis added).

In Rowe v. McGee, supra, a decayed tree of which both plaintiff and defendant were aware fell from the defendant’s lot onto the plaintiffs house. The court rejected Section 840 of the Restatement, but ultimately affirmed the judgment for the defendant on the ground of the plaintiffs contributory negligence.

The defendant in Barker v. Brown, supra, knew or should have known that a tree on his land was in a decayed, rotting and dangerous condition and his failure to avert the danger led the court to hold him liable when the tree fell onto the plaintiffs property. The court stated, “[A] possessor of land in or adjacent to a developed or residential area is subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor (a) would have disclosed the defect and risk involved therein, and (b) would have made it reasonably safe by repair or otherwise.” 340 A.2d at 569 (emphasis added).

The court in Dudley v. Meadowbrooke, Inc., 166 A.2d 743 (D.C.App.1961), cited by plaintiffs, in holding the defendant to a negligence standard in maintaining trees, expressly noted evidence of the trees’ decay.

Conversely, in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), the roots of a healthy poplar tree growing on the defendant’s land invaded the plaintiff’s property. The roots clogged sewer and drain pipes, grew under the plaintiff’s cement cellar, thereby cracking and crumbling the cement and threatened to injure the condition of plaintiff’s dwelling. Nevertheless, the court held for defendant and limited the plaintiff to self-help. The court in Sterling v. Weinstein, supra in ruling for the defendant, stated “[0]ne whose land is invaded by branches and roots of trees or plants not poisonous or inherently injurious has no cause of action against the owner of such trees or plants, but may protect himself therefrom by cutting them off to the extent that they invade his property.” 75 A.2d at 148. The majority noted that the plaintiff contended that the trees were leaning at a precarious angle, but ruled that the trial court had not accepted this contention. The dissent relied heavily on the allegedly defective nature of the tree in contending that the defendant should have been held liable.

Tanner v. Walbrunn, supra, would seem to align Missouri squarely among those jurisdictions which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees, but leaves the plaintiff to his right of self-protection by cutting off the offending roots or branches at the property line. 77 Mo.App. at 266.

Here, plaintiffs adduced no evidence that the Chinese elms were defective. One photograph, plaintiffs’ Exhibit No. 5, does show a limb which had fallen during a storm. The color photograph, however, reveals that the branch was full of green leaves, hardly the sign of an unhealthy tree.

Application of the majority rule finding no liability upon the owner of a healthy tree results in no injustice in the instant case. Neither plaintiffs nor defendant committed a wrongful act. We are not inclined to find defendant acted unreasonably in permitting perfectly healthy trees to grow, and certainly defendant intended no harm thereby. The trees and their proximity to plaintiffs’ land existed when plaintiffs purchased their residence. They must be charged with awareness of the potential effects of growing trees. Recourse to self-help to protect from damage and to eliminate annoyance from overhanging branches was available to plaintiffs for 15 years before they had the branches cut off at the property line. Imposition of liability upon the tree owner under such circumstances would create the potential for continuous controversy between neighbors and could promote harassment and vexatious litigation, disruptive of neighborhood serenity. Possible exposure to liability would warrant the uprooting of trees and shrubbery in proximity to boundary lines resulting in non-aesthetic barrenness.

The result reached by the trial court is analogous to and consistent with the long established principle of law that in the absence of accumulation or diversion, the owner of land is not responsible for damages to neighboring property caused by the natural flow of water. Reedy v. St. Louis Brewing Association, 161 Mo. 523, 61 S.W. 859, 861 (1901). Thus, with water and as well as healthy trees, liability may not be predicated upon nothing more than letting nature take its course.

Judgment affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.

      . Although the monetary amount involved is small, this case is important to the litigants. Counsel for both parties, despite the relatively small amount involved, have briefed and argued this appeal with commendable zeal, thoroughness and ability. Their efforts represent the highest standards of the legal profession and are to be commended.


text:
    STATE of Missouri, Respondent, v. Wilbert HUNTER, Appellant.
    No. 49045.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 2, 1985.
    Debra Buie Arnold, St. Louis, for appellant.
    William L. Webster, Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

Defendant, Wilbert Hunter, appeals from his convictions, after a jury trial, of possession of burglar’s tools, trespass first degree, and property damage third degree. He was sentenced as a prior and persistent offender to imprisonment for a total of seven years. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Thomas A. HUNT, Appellant.
    No. WD 35862.
    Missouri Court of Appeals, Western District.
    April 2, 1985.
    William L. Orr, Columbia, for appellant.
    William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before TURNAGE, C.J., and SOMER-VILLE and MANFORD, JJ.
   ORDER

PER CURIAM.

This is a direct appeal from a jury conviction for tampering, first degree, in violation of § 569.080.1(2), RSMo 1978.

Judgment affirmed. Rule 30.25(b).


text:
    FUNERAL SECURITY PLANS, INC., Respondent, v. Robert COOPER, Appellant.
    No. WD 35881.
    Missouri Court of Appeals, Western District.
    April 2, 1985.
    Carl W. Bussey, Kansas City, for appellant.
    Michael J. Gallagher and Rebecca S. Cort and Thomas Franklin of Wassberg, Gallagher & Jones, Kansas City, for respondent.
    Before TURNAGE, C.J., and SOMER-VILLE and MANFORD, JJ.
   ORDER

PER CURIAM.

This is a direct appeal from a jury award for breach of contract. The judgment is affirmed.

Rule 84.16(b).


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Melvin PERRY, Appellant.
    No. WD 35922.
    Missouri Court of Appeals, Western District.
    April 2, 1985.
    James W. Fletcher, Public Defender, Kent Gipson, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Leah A. Murray, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   SOMERVILLE, Judge.

Defendant, charged with robbery in the first degree (§ 569.020, RSMo 1978), was found guilty by a jury of robbery in the second degree (§ 569.030, RSMo 1978) and his punishment was assessed at fifteen (15) years imprisonment. Following an unavailing motion for new trial, judgment was entered and sentence pronounced accordingly.

As the sufficiency of the evidence has not been questioned, a brief disclosure of certain basic facts should presently suffice. At approximately 1:30 a.m. on December 17,1982, the victim of the robbery, a prostitute, was plying her trade at the intersection of Linwood and Main in Kansas City, Missouri. Defendant, riding as a passenger in a “maroon Monte Carlo” driven by an unidentified third person, arrived at the scene. Defendant got out of the vehicle, approached the victim, and sought to engage her services. The victim rebuffed defendant because she didn’t “date” blacks. Thereupon, defendant, brandishing a “handgun” or “pistol”, robbed the victim of approximately $80.00 in United States currency which she had upon her person. A policeman in the immediate vicinity was alerted by two of the victim’s “friends”. The policeman drew his weapon and ordered defendant to “halt”. Defendant, notwithstanding, jumped back into the maroon Monte Carlo and a high speed chase ensued. The vehicle in which defendant was riding finally came to a stop at 39th and McGee when it struck a “traffic pole”. The unidentified third person who was driving the maroon Monte Carlo jumped out and escaped on foot. Defendant, who had been drinking heavily, was apprehended as he sat slumped over in the right front seat of the vehicle. Additional evidence will be forthcoming when and where deemed necessary for ultimate dispositional purposes.

Four points of error are relied on by defendant on appeal, three relating to admissibility or inadmissibility of certain evidence, and one relating to prosecutorial closing argument. Of the four points, one in particular is dispositive of this appeal— admission of a loaded 20-gauge shotgun at the request of the state over vehement objections by defendant and requests for a mistrial that the weapon was irrelevant and highly prejudicial. Failure to explicitly mention or give detailed consideration to the remaining three points relied on by defendant is in no way indicative of their merit or lack of merit. Matters associated with the remaining three points may not occur on retrial as the defendant’s brief, and the arguments and authorities cited therein, alert the state to their potential danger in the event they are repeated.

Certain additional facts come to the forefront in addressing and ruling defendant’s contention that the trial court erred in admitting the loaded 20-gauge shotgun into evidence. According to the evidence presented by the state, defendant perpetrated the robbery in question by means of a “handgun” or “pistol”. Both the victim and the police officer who arrived at the scene positively testified that defendant was brandishing a “handgun” or “pistol” at the time. Defendant, although admitting that he confronted the victim about engaging her services, denied that he robbed her or that he had or owned a “handgun” or “pistol”. Defendant also separately accounted for some $85.00 in currency he had on his person when arrested. The loaded 20-gauge shotgun first crept into evidence when a police officer testified on behalf of the state that it was found “wrapped in a blanket” in the back seat of the maroon Monte Carlo after defendant was apprehended at 39th and McGee at the conclusion of the high speed chase. The evidence stands uncontradicted that defendant’s mother, rather than defendant, was the owner of the maroon Monte Carlo, and that defendant had temporarily borrowed the vehicle the night in question because his own car “broke down”. There was no evidence whatsoever as to who owned the loaded 20-gauge shotgun. More particularly, there was no evidence whatsoever that defendant was even aware of the presence of the loaded 20-gauge shotgun in the back seat of the maroon Monte Carlo. It is made clear by the record that the state’s witnesses who testified that defendant perpetrated the robbery by means of a “handgun” or “pistol” were aware of the distinction between such weapons and a shotgun, and neither contended nor implied that defendant perpetrated the robbery by means of a shotgun. There is not so much as a scintilla of evidence that defendant and the unidentified third person who was driving the maroon Monte Carlo were on a criminal spree of any kind before or after the alleged robbery in question. No “handgun” or “pistol” was ever found or retrieved by police authorities on or from defendant’s person or in or from the maroon Monte Carlo, or elsewhere, although the vehicle was kept in sight by the pursuing officer during the high speed chase except for several momentary occasions when it went over hills.

The courts of this state, with notable consistency, have recognized that weapons unconnected with either the accused or the offense for which he is standing trial lack any probative value and their admission into evidence is inherently prejudicial and constitutes reversible error. As observed in State v. Charles, 572 S.W.2d 198, 198 (Mo.App.1978), “[ljethal weapons completely unrelated to and unconnected with the criminal offense for which an accused is standing trial have a ring of prejudice seldom attached to other demonstrative evidence....” The consistency with which the admission of such demonstrative evidence has been branded as reversible error is borne out by the following cases: State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); State v. Moore, 645 S.W.2d 109 (Mo.App.1982); State v. Fristoe, 620 S.W.2d 421 (Mo.App.1981); State v. Williams, 543 S.W.2d 563 (Mo.App.1976); State v. Davis, 530 S.W.2d 709 (Mo.App.1975); and State v. Merritt, 460 S.W.2d 591 (Mo.1970).

The state attempts to avoid the consequences of the above-cited cases by indulging in a bifurcated argument — the shotgun was admissible under one or the other of several recognized exceptions or, even though inadmissible, its admission constituted harmless error.

First the state argues that the controversial shotgun was admissible to show “a common scheme ..., plan [or] availability of the means to commit the crime in question.” In support thereof, the state places great emphasis on the holding in State v. Evans, 237 S.W.2d 149, 151 (Mo.1951), to the effect that “[ajrticles showing motive, or malice, or intent, or knowledge or preparation, may be received in evidence if shown to be connected with the crime or the accused”. (emphasis added) The fallacy of defendant’s reliance on the foregoing is self-evident — the shotgun was never connected with either the crime or the accused. The acid test for determining whether the shotgun falls within the quoted exception is whether it had any logical relevance to the offense for which defendant stood trial. It is patent that it did not as it was neither connected with the offense nor with defendant.

The state also argues that the shotgun was admissible under the “res gestae” doctrine. Inclusion of demonstrative evidence within the purview of the res gestae doctrine appears to strain legal phraseology. The state apparently seeks to ease the strain by equating it with “acts” or “events”. As put in State v. Winston, 657 S.W.2d 399, 401 (Mo.App.1983), “[a]cts or events are a part of the res gestae if they occur in the same transaction as the crime, are substantially contemporaneous with the commission of the crime and are part of one continuous transaction in the accomplishment of a common design.” See also State v. Nylon, 563 S.W.2d 540, 542 (Mo.App.1978). The res gestae argument advanced by the state is, pragmatically, indistinguishable from its first argument. Once again, a logical relevance to the offense for which defendant stood trial is the acid test for determining whether the shotgun was admitted under the state’s strained version of the res gestae doctrine. It cannot be said that the loaded 20-gauge shotgun in the back seat of the maroon Monte Carlo, the presence of which was unknown by and unconnected with defendant, was in any way associated with the purported robbery which occurred at Linwood and Main or part of a continuous transaction in the accomplishment of a common design. Based on the record in this case, to argue otherwise one would have to resort to sheer speculation, conjecture and surmise, a universally condemned practice.

The state alternatively contends that even if the shotgun was improperly admitted into evidence, doing so constituted harmless error. Ostensibly in support thereof, the state quotes as follows from State v. Lue, 598 S.W.2d 133, 137 (Mo.banc 1980): “[t]he mere mention of another offense is not per se prejudicial_” Unfortunately, the shotgun, which is the eye of the controversy in this case, was prominently displayed in the presence of the jury from the time of its admission (which occurred prior to the time the state called its final two witnesses) and was referred to by the state at least three times during closing argument. At this juncture, it is appropriate to note that the applicable standard for determining whether error in the admission of evidence is harmless may be in a state of flux. Under a certain line of authority “error in the admission of evidence should not be declared harmless unless it is so without question.” State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo. banc 1972). See also: State v. Wright, 582 S.W.2d 275, 277 (Mo. banc 1979); and State v. Mayes, 654 S.W.2d 926, 936 (Mo.App.1983). However, the majority opinion in State v. Miller, 650 S.W.2d 619, 621 (Mo. banc 1983), without expressly overruling State v. Degraffenreid, supra, holds that “[t]he more understandable and prevailing standard is that error can be declared harmless only if we are ‘able to declare a belief that it was harmless beyond a reasonable doubt.’ ” Admission of the shotgun into evidence by virtue of its inherent prejudicial nature and lack of relevancy, coupled with the state’s advert reference to it before the jury to obtain defendant’s conviction, dispel any credence to the state’s argument that any error associated therewith was harmless when tested by either standard.

Without being hyperbolic, admission of the shotgun into evidence was totally unjustified and the dangerous tendency and misleading effect of such evidence cannot be minimized.

Unfortunately, prosecutorial “overkill” is a far too common occurrence. Perforce, when the state, as here, insists on walking the precipice of reversible error, it must be prepared to suffer the consequences of stepping over the edge — reversal and remand for a new trial.

Reversed and remanded for a new trial.

All concur.


text:
    James Robert RUCKER, Appellant, v. Vickie Sue RUCKER, Respondent.
    No. WD 35953.
    Missouri Court of Appeals, Western District.
    April 2, 1985.
    Joseph Y. DeCuyper and Donnie R. Davis, Kansas City, for appellant.
    Clyde G. Meise, Kansas City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   PER CURIAM.

Husband appeals from those provisions of decree of dissolution which award wife marital property of the value of $30,419.93 as against marital property awarded to him of the value of $15,880, each including one-half the value of the parties’ real estate; which award wife $2,400 maintenance in gross; and which award wife attorney’s fees totaling $5,000 for trial and appeal.

We have examined the trial record and the contentions of the parties. The trial court was within the range of discretion accorded to him in each of the awards criticized by the husband. The legal principles which govern the case have been thoroughly explicated by cases already printed in the law books. An extended opinion would have no value as precedent. Rule 84.16(b).

Judgment affirmed.


author: SMITH, Presiding Judge.

text:
    Mark REARDON, Petitioner-Appellant, v. Elisabeth Grossman REARDON, Respondent-Respondent.
    Nos. 48788, 48571.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 9, 1985.

      Harry B. Wilson, St. Louis, for petitioner-appellant.
    John B. Kistner, St. Louis, for respondent-respondent.
   SMITH, Presiding Judge.

Mark Reardon appeals from two orders of the trial court. The first was a dismissal of his motion for modification of a Connecticut dissolution decree as respects maintenance and child support. The court dismissed that motion for lack of subject-matter jurisdiction. The second is the denial of his motion to set aside a default judgment which established his liability for past due maintenance and child support under the dissolution decree at $20,250.00. We reverse and remand.

Mark Reardon and Elisabeth Reardon were granted a dissolution of their marriage on April 23, 1980, by the Superior Court of Connecticut. Custody of the only child of the marriage was granted to Elisabeth. The stipulation of the parties as to child support, alimony, and the division of property was made part of the judgment. The maintenance payments stipulated to were $100 per week for two years and those were stipulated to be unmodifiable by either party. Child support was set at $150 per week to increase to $200 upon termination of maintenance. No provision concerning modifiability of child support was in the stipulation or decree. Both maintenance and child support were to commence “one week from the sale and closing of the real property” constituting the family home. Elisabeth intended to relocate in Wisconsin and based on statements in the brief has done so. Mark relocated in Missouri. •

On November 5, 1981, Elisabeth petitioned the trial court for registration of the Connecticut decree. That petition alleged the rendition of the decree, jurisdiction of the Circuit Court of St. Louis County, and authority under Rule 74.79 to register the judgment and obtain a levy. The prayer sought registration of the judgment and concurrently therewith a writ of process to enforce the judgment against the property of Mark. The petition for registration contained no allegations of non-payment, ar-rearage, or the date when payments became due under the decree. On the same day the petition was filed the trial court ordered “that said Foreign Judgment in the sum of $20,250.00 as of 11-6-81, together with interest and costs be registered as prayed, and that execution and garnishment be ordered to issue against Mark Reardon.” No service of process or notice by mail was made on Mark.

On March 16, 1982, Mark filed in St. Louis County Circuit Court a motion to modify the dissolution decree as respects both maintenance and child support. That motion was filed carrying the same cause number as the petition for registration. It also sought retroactive modification of the decree and enforcement of the visitation and temporary custody provisions of the decree. Elisabeth filed an answer to the motion to modify requesting dismissal. She raised in the answer Mark’s delinquency in payments under the decree but made no allegations of the amounts owed other than characterizing them as “severe.” On April 10, 1984, the trial court dismissed Mark’s motion “for the reason that the Court lacks subject matter jurisdiction over the matter.” Mark timely appealed from that order.

On April 11, 1984, Mark filed his motion to set aside the default judgment entered on November 5, 1981. His grounds included failure to obtain service upon him, the granting of relief not requested in the petition, and an absence of evidence of the amount of any money owed under the Connecticut decree. These grounds were alleged to be irregularities on the face of the record subjecting the judgment to being set aside. Rule 74.32. On May 30, 1984, the Motion was denied. Timely appeal was taken from that order. The two appeals have been consolidated in this court.

We first review the dismissal of Mark’s motion to modify the dissolution decree. In making such review we reiterate that the action of the trial court was based solely upon the absence of subject-matter jurisdiction and not upon failure to state a claim or some discretionary ground. In New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 91 L.Ed.2d 1133 (1947) [6, 8] it was held that “a judgment has no constitutional claim to a more conclusive or final effect in the State of the forum than it has in the State where rendered.” Missouri therefore has the same power to modify a judgment as the rendering state. Thompson v. Thompson, 645 S.W.2d 79 (Mo.App.1982). A foreign judgment registered in this state becomes “a final personal judgment of the court in which it is registered.” Rule 74.79(g); Sec. 511.760.7, RSMo 1978; Mangold v. Mangold, 294 S.W.2d 368 (Mo.App.1956) [1]. Such a judgment becomes the basis for levy against the property of the Missouri resident. Rule 74.79(l) & (m). We find no authority which precludes a Missouri court from modifying a judgment registered in Missouri to the extent such modification is permitted in the state of rendition.

As to maintenance and support awards which have become due prior to the motion to modify, full faith and credit requires that no modification can be made unless allowed by the state of rendition. Thompson v. Thompson, 645 S.W.2d 79 (Mo.App.1982) [11]. Connecticut does not allow such retroactive modification. Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977) [9]; Milot v. Milot, 174 Conn. 3, 381 A.2d 528 (1977) [3]. To the extent Mark’s petition sought such modification the trial court lacked jurisdiction to entertain the motion. The same is true of the award of maintenance in the Connecticut decree. Maintenance was declared in the stipulation (adopted by the decree) to be unmodifiable. Connecticut recognizes such restrictions on maintenance. Johnson v. Johnson, 185 Conn. 573, 441 A.2d 578 (1981) [1, 2 & Fn. 5]. Mark does not dispute this on appeal.

The award of child support as to future installments stands on a different footing. Such awards are subject to modification in Connecticut unless precluded by the decree. Johnson v. Johnson, supra; Bilosz v. Bilosz, 184 Conn. 90, 441 A.2d 59 (1981) [1-8]. There is no prohibition of modification of child support in the decree or stipulation. The trial court had jurisdiction over Mark’s motion to modify the child support award and to enforce the visitation and temporary custody provisions of the Connecticut decree. The trial court erred in dismissing the motions on jurisdictional grounds.

We turn to the motion to set aside the default judgment. Both parties agree that the November 5 order of the trial court registering the judgment did not become final until thirty days after Mark entered his appearance. Rule 74.79(g). That entry occurred March 16, 1982, when Mark filed his original motion to modify. Thereafter, Mark did not file an answer to the petition for registration. As a result the registration of the foreign judgment became final. Neither party questions that the Connecticut decree has been properly registered in Missouri. Elisabeth contends that such registration includes the ex parte determination by the trial court of the amount due under that judgment. We think not for two interrelated reasons.

First, the matter presented to the court on November 5, was the registration of the decree from Connecticut. That decree did not establish an amount owing. It did not even provide the date on which payments under the decree commenced. Registration of the decree did not carry with it any presumption of the amount owing. For the court to make a determination of a dollar amount due as a part of the registration order without notice to Mark was a denial of due process rendering that portion of the order void. Griffin v. Griffin, 327 U.S. 220, 232-33, 66 S.Ct. 556, 90 L.Ed. 635 (1946) [11-13]. Secondly, the petition for registration made no request for determination of an amount due, set forth no facts from which such a computation could be made, and contained no allegation of arrearage or non-payment under the decree. It afforded, in short, no basis for an award of a specific sum under the decree. Mark’s failure to answer admitted all facts well pleaded in the petition. But there were no well-pleaded facts supporting the amount set forth in the registration order. The order granted relief in excess of that requested in the petition and was unsupported by the allegations of the petition. As such it was beyond the jurisdiction of the trial court to award in a default judgment. Govero v. Govero, 579 S.W.2d 152 (Mo.App.1979) [1]; Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App.1973) [1-3]. Both the absence of due process and the absence of jurisdiction to award relief beyond that pleaded were irregularities apparent on the face of the record. As such they warranted the relief sought in Mark’s motion to set aside default and the trial court erred in denying such motion.

Judgment on the default judgment reversed and cause remanded with directions to set aside default judgment to the extent it establishes an amount due under the Connecticut judgment. Judgment dismissing appellant’s motions to modify future awards of child support and to enforce decree is reversed and remanded. Judgment dismissing appellant’s motion to modify maintenance award and past due child support is affirmed.

SNYDER and SATZ, JJ., concur.

      . Zirul v. Zirul, 671 S.W.2d 320 (Mo.App.1984) explained that the language utilized in Mangold was less extensive than it appears to be. Zirul held that registration in Missouri did not cause the judgment to assume all the characteristics of a Missouri judgment if those characteristics differed from those of the rendering state. Zirul was dealing with a claim that registration of a foreign judgment not subject to modification in the rendering state, lost that status when registered in Missouri which would allow modification. Zirul rejected that claim as do we. Zirul does not reach the issue before us of modification in Missouri of a registered foreign judgment subject to modification in the rendering state.

      . The trial court relied upon Siegel v. Mosier, 632 S.W.2d 76 (Mo.App.1982) in dismissing the motions. That case deals with the authority of a court to award the amounts it found at hearing to be past due, and restricts the court from awarding as part of the judgment future payments subject to modification. The case is inap-posite.