13 S.W. 405 (Mo. 1890), Robertson v. Drane

Citation:13 S.W. 405, 100 Mo. 273
Opinion Judge:Brace, J.
Party Name:Robertson v. Drane, Appellant
Attorney:Geo. L. Hays and Boyd & Sebree for appellant. Davis & Wingfield for respondent.
Case Date:March 22, 1890
Court:Supreme Court of Missouri
 
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Page 405

13 S.W. 405 (Mo. 1890)

100 Mo. 273

Robertson

v.

Drane, Appellant

Supreme Court of Missouri

March 22, 1890

October, 1889

Appeal from Saline Circuit Court. -- Hon. J. P. Strother, Judge.

Reversed and remanded.

Geo. L. Hays and Boyd & Sebree for appellant.

(1) The court erred in giving the second instruction for the plaintiff. It singles out a particular fact or part of the testimony to the exclusion of the rest. Purcell v. Lewis, 8 Mo.App. 593; Kaizer v. Ins. Co., 7 Mo.App. 579; Kendig v. Railroad, 79 Mo. 207. It assumes the fact of the survey of the east line of the northeast quarter of the section in question, and establishing of the southeast corner of the east half by Kirtly, which was controverted. It assumes that Kirtly's alleged survey and establishment, and marking the quarter-section corner, corresponded with the government survey, and was, therefore, correct, which was controverted by the defendant, and was one of the main issues of fact in controversy. (2) The verdict and judgment should have been set aside and a new trial granted, because the verdict was not in accordance with the instructions of the court as to manner of defining the line and because the verdict is so vague, indefinite and uncertain that the line cannot be truly located by it.

Davis & Wingfield for respondent.

There was no error in the second instruction for plaintiff, because the Kirtly survey, mentioned in said instruction, was relied upon by both parties during the trial, as the survey establishing the true line, and the reference to it was merely a reference to the true line. The question in issue was, where did Kirtly's line run, and both Ross and West attempted to find that line. It was the common source of title and both parties having recognized it as such were bound by it. Holland v. Adair, 55 Mo. 40; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Bank v. Manard, 51 Mo. 548; Rumfelt v. O'Brien, 57 Mo. 569; Smith v. Lindsay, 89 Mo. 76; Charles v. Patch, 87 Mo. 450; Lemon v. Hartsook, 80 Mo. 13, and cases there cited.

OPINION

[100 Mo. 274] Brace, J.

-- This is an action in ejectment. The only question at issue being the correct location of the boundary line between plaintiff who is the owner of the east half of the northeast quarter of section 6, township 50, range 23, and the defendant who is the owner of the...

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