Miller v. Rosenberger
| Decision Date | 31 May 1898 |
| Citation | 46 S.W. 167,144 Mo. 292 |
| Parties | Miller v. Rosenberger, Appellant |
| Court | Missouri Supreme Court |
Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.
Reversed and remanded.
Claude R. Ball for appellant.
(1) The deed from John F. Diggs to Lewis P. Miller and Thomas Kemble for the benefit of the citizens of High Hill, an unincorporated town, passed no title. Douthitt v Stinson, 63 Mo. 268; Arthur v. Weston, 22 Mo 379; Reinhard v. Lead Mining Co., 107 Mo. 624; German Land Ass'n v. Scholler, 10 Minn. 338. (2) Plaintiff's first instruction is faulty because it first described the land mentioned in the petition and then told the jury what portions of the land to exclude, which was misleading. (3) Plaintiff's second instruction told the jury that they must find from the evidence that plaintiff had notice of the adverse possession for ten years, or from the surrounding circumstances had a reasonable opportunity of knowing such use. It is immaterial whether he had notice or not. Scruggs v. Scruggs, 43 Mo. 142; 114 Mo. 246.
J. D Barnett for respondent.
(1) The conveyance from Diggs to Miller and Kemble was valid. They were enfeoffed in fee, and while their control of the property might be subject to regulations, that regulation could only be invoked in the event that they sought to divert the property to an illegitimate use. (2) At Kemble's death the right to control the property and to sue for its injury or conversion remained effectual in Miller alone. (3) As stated by appellant in his argument, the plaintiff lived for twenty-seven years in sight of the property in controversy. Consequently a use of the property by the defendant and his grantees, not sufficient from the circumstances surrounding that use, to give the plaintiff, living in sight of the property, a reasonable opportunity of knowing from such use, that the occupier claimed to own the property adversely to the plaintiff, is not a sufficient basis upon which to erect the fabric of an independent title by limitation.
This is ejectment for the possession of a small tract of land adjoining the town of High Hill, in Montgomery county, Missouri, described as a half acre of land, a part of the southwest quarter of the southeast quarter of section 32, township 48, range 4, south of and adjoining upon the Boonslick road, and west of and adjoining the original town of High Hill, bounded as follows: Commencing at the northwest corner of the south side of High Hill, that is to say, that portion of the original town of High Hill as first laid out, and south of the Boonslick road, running west one hundred and five feet, thence south two hundred and ten feet, thence east one hundred and five feet to the west line of the south side of the original town of High Hill, thence north two hundred and ten feet to the place of beginning.
The petition is in the usual form in such cases. The answer is first a general denial. It then avers that in June, 1866, John F. Diggs donated to the citizens of High Hill a small parcel of land for a public watering pond; that immediately thereafter the citizens took possession of a small part of the land so donated, the donation containing more land than required, dug a pond thereon, fenced it and used it for a number of years to water stock. That in January, 1868, Diggs conveyed by quitclaim deed to plaintiff and Thomas Kemble the land which he had previously donated for the use and benefit of the citizens of High Hill, an unincorporated village, not capable in law to take a grant; that the conveyance was made without consideration and solely on the condition that the citizens keep up the watering pond, and keep it inclosed with a good and substantial fence, which they failed to do. That at the time ggs donated and conveyed the strip of land he had no title nor possession of part of the land described in the deed. That in the course of time the fences decayed and the people neglected to repair the property, and abandoned the same. That part of the land so conveyed was never taken possession of by the public, but always remained in Diggs' possession and after his death in the possession of his heirs and their grantees, and was always included in all transfers of the Diggs tract of land, regardless of the quitclaim deed. That Diggs never intended to donate more land than was necessary for a pond. That the defendant is now in the possession of a part of the land described in the said quitclaim deed, the part which never was in the possession of the public, and that he has been in peaceable possession under a warranty deed for a number of years; that none of the citizens nor the plaintiff ever made any pretended claim to that portion of the land described in said quitclaim deed which was never out of the possession of Diggs, his heirs and their grantees. Defendant also pleaded the statute of limitations, alleging that he and his grantors have been in the possession of the land for over twenty-seven years. The trial was before the court and a jury, and resulted in a judgment in favor of plaintiff for the possession of the land sued for and one cent damages. Defendant appealed.
Both parties claim title under John F. Diggs. On June 12, 1866, he executed his bond to plaintiff and Thomas Kemble, by which he bound himself to deed to plaintiff and said Kemble the land involved in this litigation, for the use and benefit of the citizens of High Hill, for a watering pond on the conditions to be specified in a deed to thereafter be made by him. During the same year, by the direction of the trustees named in the bond from Diggs to them, a pond was constructed near the northeast corner of the land, about fifty-five by eighty feet, and inclosed with a fence, and on the eleventh day of January, 1868, Diggs and his wife Sarah Diggs executed a quitclaim deed to plaintiff and said Kemble, by which the land was conveyed to them for the use and benefit of the citizens of High Hill for the purpose indicated in the title bond from Diggs and wife to them. Under this deed plaintiff claims title, and the right to possession of the land. Thomas Kemble died before the institution of this suit. John F. Diggs died in 1869, and William A. Diggs administered upon his estate. On March 14, 1873, said administrator conveyed said land, and also other land to William Clark. Defendant showed a regular chain of title to the land from Clark to himself. The fence around the pond seems to have been intended for the sole purpose of keeping stock out of it and was not erected upon the boundary lines of the tract conveyed by Diggs for pond purposes, and the balance of the tract which was within Diggs' inclosure at the time of the execution of the deed by him and wife, January 11, 1868, has remained within the same inclosure ever since, and has been used and cultivated by him, and defendant, and those under whom defendant claims ever since, just as it was before. The land was deeded to defendant by William Clark on the nineteenth day of November, 1888, and shortly thereafter he fenced the pond out, by rebuilding the fencing around it where it had theretofore stood. The town of High Hill was never incorporated.
Over the objection and exception of defendant the court instructed the jury as follows:
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