Krider v. Milner

• Decision Date: 02 December 1889
• Citation: 12 S.W. 461,99 Mo. 145
• Parties: KRIDER v. MILNER.
• Court: Missouri Supreme Court

12 S.W. 461

99 Mo. 145

KRIDER v. MILNER.

Supreme Court of Missouri.

December 2, 1889.

ADVERSE POSSESSION — INSTRUCTIONS.

1. Where the line between adjoining owners is in doubt, but they only claim ownership to the true line, wherever that may be, no title by adverse possession can arise in either, as against the other.

2. An instruction that, "on the evidence in this case, the statute of limitations is a bar to the suit," is properly refused, as an instruction should state hypothetically the facts of the case, so that it may be determined upon appeal whether the court applied correct principles of law.

Appeal from circuit court, Greene county; JAMES R. VAUGHN, Judge.

Thrasher, White & McCammon, for appellant. T. W. Kersey and Goode & Cravens, for respondent.

BLACK, J.

This is an action of ejectment to recover a strip of land eight rods wide off of the south side of the east half of lot 2 of the north-west fractional quarter of section 4, etc. Plaintiff owns the east half of lot 2 which contains, according to government survey, 43.06 acres. Defendant owns the east half of lot 1, which contains 40.04 acres. The contest is over the proper location of the boundary line. The plaintiff's land is on the north, and the defendant's on the south, of this disputed line. For convenience each tract will be designated as a 40-acre tract. It appears a fence had been erected between the two 40-acre tracts, as far back as 1868 or 1869, by one Autery, who owned the south 40. Mr. Moore, who then owned the north 40, says he supposed the fence was on the line. Mr. Franklin owned the north 40 from 1874 to 1879, and during that time, and on to December, 1883, Mr. Hale owned the south 40. Mr. Franklin says he and Hale talked about the line, and Mr. Hale said he thought the true line was in his (Hale's) field; that Hale agreed with him that the line was in his (Hale's) field, and that some time they would have the land surveyed, and place the fence on the true line. Plaintiff purchased and took possession of the north 40 in 1879, and it appears he made a new fence, placing it still further in on his own land, and Hale took the old fence away. The county surveyor says he established the line between plaintiff and Hale, at their request, in 1883, that both parties were present, and that he found the line to be eight rods south of the fence. Subsequently, and in 1885, the defendant, Milner, became the owner of the south 40. This suit was commenced in 1885. The case was tried by the court, without a jury. No instructions were asked by the plaintiff. Mr. Youngblood, the county surveyor who made the survey in 1883, attempted to make a record of his survey under the provisions of chapter 158, Rev. St. 1879; and he produced in court a copy of this record, which copy was made and certified by himself. On the objection of defendant, the court, by an instruction, excluded this copy because it failed to show that the survey was made in accordance with the requirements of the statute; but the copy was evidently used by the surveyor as a memorandum, to refresh his memory in giving his evidence as to how he made the survey, and where he found the line. The record could have been used for such a purpose; and since...