Shotwell v. Gordon

• Decision Date: 08 May 1894
• Citation: 26 S.W. 341
• Parties: SHOTWELL v. GORDON.
• Court: Missouri Supreme Court

26 S.W. 341

SHOTWELL v. GORDON.

Supreme Court of Missouri, Division No. 2.

May 8, 1894.

EJECTMENT — ADVERSE POSSESSION — INSTRUCTIONS — EVIDENCE.

1. In ejectment an instruction that if defendant held the actual and continuous possession of the land in controversy, claiming it as his own, and with no intentions of yielding it up in case it was found, on a correct survey, that the true line of his land ran north of the strip in controversy, then his possession was adverse, but if it was his intention to hold said strip only in the event that, on a correct survey, it was a part of the land bought by him, his possession was not adverse, is correct.

2. Where the sole question at issue is as to the adverse possession of defendant, it is not error to refuse evidence as to plaintiff's title, where it is conceded that he had title to his land, and paid taxes thereon.

Appeal from circuit court, Ray county; J. M. Sandusky, Judge.

Action in ejectment by John W. Shotwell against William Gordon growing out of disputed boundaries. From a judgment for defendant, plaintiff appeals. Affirmed.

J. W. Shotwell, in pro. per. Lavelock & Lavelock, for respondent.

GANTT, P. J.

This is an action of ejectment for a narrow and irregular strip of land, varying from 20 to 50 feet in width, and aggregating about one-half of an acre. The dispute originated between two adjoining proprietors, — the plaintiff and William Gordon. The latter has died since this appeal was taken, and his heirs have been substituted. Gordon purchased of Woods his 20-acre tract near the junction station on the Wabash line near Richmond, Mo. His tract was covered with timber when he purchased it, and he built his house, and, year by year, cleared it. There was ample testimony showing that Mr. Woods showed him the line in the road, and that be built his fences with reference to that line, and for 22 years claimed up to it. He set apart a small tract in one corner of his 20 acres for his burial ground, and in it his two wives were buried. This burial ground falls partly within the strip claimed by plaintiff. The jury found for the defendant, and plaintiff appeals.

Plaintiff deduced a perfect paper title to his 40 acres, and a recent survey indicated that Gordon had put a part of his fence over the line of this 40, along the road between the tracts. On the other hand, defendant's title to his 20 acres was not questioned. Defendant asserted title to the strip in suit by adverse possession. Plaintiff...