Kunze v. Evans

• Decision Date: 28 May 1895
• Citation: 31 S.W. 114,129 Mo. 1
• Parties: KUNZE v. EVANS.
• Court: Missouri Supreme Court

31 S.W. 114

129 Mo. 1

KUNZE v. EVANS.

Supreme Court of Missouri, Division No. 1.

May 28, 1895.

EJECTMENT — NECESSITY OF POSSESSION.

Actual occupancy of or residence upon the property is not a necessary element of the possession required in defendant to sustain ejectment.

Appeal from circuit court, Cass county; W. W. Wood, Judge.

Action by L. O. Kunze against T. D. Evans and another, in ejectment, to recover land. From a judgment for plaintiff, defendant Evans appeals. Affirmed.

For former appeal, see 18 S. W. 36.

H. Clay Daniel, J. S. Wooldrige, and N. M. Givan, for appellant. Burney & Burney and Wm. L. Jarrott, for respondent.

BRACE, C. J.

This is an action in ejectment commenced July 2, 1887, by the plaintiff, L. O. Kunze, against T. D. Evans and S. J. Beattie, in the circuit court of Cass county, to recover a narrow strip of ground (3 feet by 30 feet 6 inches) in lot 4, block 2, in the city of Harrisonville, covered by an ice house erected by said defendants in the year 1882. Judgment for plaintiff, and the defendant Evans appeals. The case has been here before, and is reported in 107 Mo. 487, 18 S. W. 36, where a full statement may be found. The decision of the case then, as now, turned upon the true location of the line between the lot of the plaintiff and the lot belonging to the wife of the defendant Evans. Both parties claimed according to the lines of their respective deeds, until this controversy arose. On the former appeal it was found that the true division line was 27 feet south of the north line of plaintiff's lot, and that the ice house extended north over that line 6 inches, onto the plaintiff's lot. The evidence on the last was substantially the same as on the former trial, except that since the former trial another survey was made, by which it was made to appear on the last trial that instead of the east and west lines of plaintiff's lot being of equal length, as they appeared to be on the first trial, owing to the fact that the north and south lines of the block converge, going west, the plaintiff's west line was in fact only 26 feet 8 1/10 inches in length, instead of 27 feet. The circuit court adopted the line of the last survey, and consequently gave the plaintiff judgment for 3 9/10 inches — by 30 feet less than he was found to be entitled to on the former appeal. There was no error in this, but, if so, it was an error in favor of the defendant, of which he cannot complain.

The only additional point made on this...