Courtner v. Putnam

• Decision Date: 09 July 1930
• Docket Number: No. 28176.,28176.
• Citation: 30 S.W.2d 126
• Parties: C.M. COURTNER v. H.W. PUTNAM and ANNA PUTNAM, Appellants.
• Court: Missouri Supreme Court

30 S.W.2d 126

C.M. COURTNER v. H.W. PUTNAM and ANNA PUTNAM, Appellants.

No. 28176.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Greene Circuit Court. — Hon. Guy D. Kirby, Judge.

AFFIRMED.

Howard Gray for appellants.

(1) The undisputed testimony shows that, beginning with 1910 and continuing for fifteen years, the appellants and those under whom they claim, were in the open, notorious and exclusive possession of the property sued for, and all of it was within their enclosure. This being true, they were entitled to hold the property, unless the respondent showed that the holding was subject to a future ascertainment of the correct line. Bartlett v. Boyd, 175 S.W. 947; Lemmons v. McKinney, 162 Mo. 531; Hedges v. Pollard, 149 Mo. 216; Nichols v. Tallman, 189 S.W. 1184. (2) The undisputed testimony shows that fifteen years before the respondent acquired title the then owner of the property on both sides of the disputed property, and including it, made a deed to a corporation and put that corporation in possession as owner of all of the land west of the fence. There is not a word of testimony that the parties, by their acts or conduct, ever had an understanding that the fence was the temporary line, and was to be shifted at any time in the future when the true line might be ascertained. In addition to the above, Mr. Robertson testified that while he and his wife were in possession of the land east of the fence, they always conceded and dealt with the property with the understanding that the fence was their west line. In addition to this, when they sold the property to Wallace, he was put in possession of only the property east of the fence, and he testified that during all the time he owned the property, he considered the fence as the line and did not claim that there was any understanding between him and the Lumber Company that the fence might be shifted to the true line when one was determined. Under these circumstances, the fence became the line, and the court erred in not finding for the appellants. Hedges v. Pollard, 149 Mo. 216; Cole v. Parker, 70 Mo. 379; Battner v. Baker, 108 Mo. 315; Goltermann v. Schiermeyer, 111 Mo. 418. (3) On cross-examination the former owners of the property were asked if they intended to claim property that did not belong to them, and because they said no, respondent claims that such testimony showed that they were only claiming to the true line, and treated the fence as only a temporary line. Such testimony in no wise strengthens the respondent's case. Milligan v. Frits, 226 Mo. 201; Nichols v. Tallman, supra; Cole v. Parker, supra. (4) The evidence showing that in 1910 the common owner of all the property made a deed to the Lumber Company and put it in possession of all of the land west of the fence, and then, by deed, made a gift to his daughter and put her in possession of all land east of the fence, and that the parties took down the old fence because of its appearance and erected a new woven wire fence on the exact line of the old fence, and acquiesced in the lines so established all the time they owned the properties, it is sufficient to establish that the line was an agreed one, as such agreement need not be shown by direct testimony. Wright v. Hines, 287 S.W. 471. (5) While this cause was tried before the court, without a jury and the judgment is conclusive on appeal if supported by substantial evidence, yet where the finding is contrary or in disregard of evidence, which was not improbable or inconsistent and it was not contradicted or disregarded, it will be set aside. Martin v. Hays, 228 S.W. 741.

Lincoln & Lincoln for respondents.

(1) The rule has long been established that the occupancy, by an adjoining property owner of another's land to a fence simply under the belief that such fence is the true line but without claim of ownership to the fence, if not the true boundary line, does not constitute adverse possession. Schad v. Sharp, 95 Mo. 573; McWilliams v. Samuel, 123 Mo. 659; Foard v. McAnnelly, 215 Mo. 371; Skinker v. Haagsma, 99 Mo. 208. (2) The cause was tried before the judge and the only person who testified relative to adverse possession was Sherman Robertson, the husband of the owner of Lots 16, 17 and 18 and from his testimony it is clearly shown that the O'Neal Lumber & Coal Company only claimed to the true line, wherever that might be. If this is true, then respondent's contention that he was entitled to all of Lots 16, 17 and 18 must prevail, for the title to these properties was in the O'Neal Lumber & Coal Company and in Mrs. Robertson until the 23rd day of May, 1923, when the company deeded its property to the Putnams, Mrs. Robertson deeding the three lots to Wallace in the same year and there not being ten years of possession between 1923 and 1926, the date of the trial of the case. (3) "Where adjoining landowners are divided by a fence, which they suppose is a true line, each claiming only to the true line, wherever that may be, they are not bound by the supposed line and must conform to the true line when it is ascertained." Foard v. McAnnelly, 215 Mo. 393; Jacobs v. Moseley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 574; Krider v. Milner, 99 Mo. 145; Skinker v. Haagsma, 99 Mo. 209. "Their possession, under mistake or ignorance of the true line dividing their premises and without intending to claim beyond the true line, will not work a disseizin in favor of either party." (4) The burden of proving the holding of appellants was subject to future ascertainment of the true line did not fall upon the respondent. Wear v. Cheek, 201 S.W. 849.

SEDDON, C.

Action in ejectment, commenced at the May, 1926, term of the Greene County Circuit Court. The petition is in the conventional form, the plaintiff (respondent here) alleging that, on the sixth day of May, 1926, he was entitled to the possession of all of Lot 16 of W.B. Searcy's Addition to the city of Republic, Greene County, Missouri; that the defendants (appellants here), on the seventh day of May, 1926, entered upon the described premises and are unlawfully withholding from the plaintiff the possession thereof, to plaintiff's damage in the sum of $100, and that the value of the monthly rents and profits of the described premises is ten dollars. Plaintiff, by his petition, prays judgment for the recovery of possession of the described premises, together with damages and monthly rents until possession of the described premises is restored and delivered to plaintiff.

The answer denies generally the allegations of the petition, and avers that defendants are the owners of the described premises and that plaintiff has no interest therein.

A trial of the issues to the court below, sitting as a jury (trial by jury being waived by the parties), resulted in a general finding by the court that plaintiff is entitled to the possession of the described premises, being all of Lot 16 of W.B. Searcy's Addition to the city of Republic, Missouri; that plaintiff is damaged in the sum of $25 because of the withholding of possession of said premises by the defendants; and that the value of the monthly rents for the use of said premises is two dollars; wherefore, it was adjudged by the trial court that plaintiff have and recover of and from the defendants the possession of the described premises, together with the sum of two dollars per month, as rents, from the date of said judgment until possession of the premises be restored to plaintiff, and that plaintiff recover $25 damages and the costs of suit, and that process issue therefor.

No instructions or declarations of law were requested by either of the parties to the action, and none was given by the trial court. The findings of the trial court are general, and are set forth, as aforesaid, in the judgment.

Upon the overruling of defendants' motion for a new trial, the defendants were allowed an appeal to this court from the judgment entered in the trial court.

The evidence discloses that plaintiff and defendants are the proprietors of adjacent lands, and the controversy between the parties has relation to the boundary line between their respective lands. The record title to the land in controversy, Lot 16 of W.B. Searcy's Addition to the city of Republic, in Greene county, Missouri, stands in the name of the plaintiff (respondent), C.M. Courtner. On May 6, 1925, the plaintiff-respondent, C.M. Courtner, purchased from T.R. Wallace, and the latter conveyed, by proper deed, to plaintiff-respondent, all of Lots 16, 17 and 18, of W.B. Searcy's Addition to the city of Republic. The three lots aforesaid are numbered from west to east, Lot 16 being the westerly of the three lots, Lot 17 being the middle lot, and Lot 18 being the easterly of the three lots. Adjoining Lot 16 on the west is an unplatted tract of land, described by metes and bounds. The defendants (appellants), II. W. Putnam and Anna Putnam, are the record owners of said unplatted tract of land, having acquired the record title thereto from the O'Neal Lumber & Coal Company by general warranty deed, dated May 23, 1923. The common source of title to Lots 16, 17 and 18, of W.B. Searcy's Addition, and to the unplatted tract of land adjoining said Lot 16 on the west, was George W. O'Neal. In the year 1910, George W. O'Neal, by deed of gift, conveyed all of Lots 16, 17 and 18, of W.B. Searcy's Addition, to his daughter, Myrtle Robertson, wife of Sherman Robertson. In the same year, 1910 George W. O'Neal conveyed the unplatted land on the west of, and adjoining, Lot 16, to O'Neal Lumber & Coal Company, which seemingly was an incorporated entity, owned and controlled by George W. O'Neal and his son-in-law, Sherman Robertson, the latter owning a one-fourth interest in the said corporation. Prior to the year 1910, and while the platted lots and the unplatted land were owned and possessed by said George W. O'Neal, he built a wooden fence, extending from north to south, across the lands, which...