Stoker v. Green

• Citation: 7 S.W. 279,94 Mo. 280
• Parties: Stocker et al., Plaintiffs in Error, v. Green
• Decision Date: 05 March 1888
• Court: United States State Supreme Court of Missouri

7 S.W. 279

94 Mo. 280

Stocker et al., Plaintiffs in Error, v. Green

Supreme Court of Missouri

March 5, 1888

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

The following is the instruction asked by plaintiff and referred to in the opinion of the court:

"The court is asked to declare the law to be, that, upon the pleadings and evidence offered in this case, the plaintiff is entitled to recover a strip of land now in the possession of defendant, being a strip of ground commencing at a point on the east line of Third street twenty-two feet, more or less north of the north line of Loughborough avenue, and at the corner of a fence now upon said premises; thence running north along the east line of Third street to a point, being a point thirty feet north of the north line of Loughborough avenue; thence east and parallel with Loughborough avenue one hundred and forty feet to an alley; thence south eight feet more or less, to a point; thence westwardly and parallel with said Loughborough avenue one hundred and forty feet to the place of beginning, and being the premises enclosed by a fence on the south, said premises being in city block No 3004 of the city of St. Louis, state of Missouri."

Affirmed.

William B. Thompson for plaintiffs in error.

(1) The possession of Mrs. McPeak of the lot in controversy was taken at the time she received her deed from Calvert, subject to the understanding and agreement that existed between her grantor and the plaintiffs' grantor, that no title was claimed by reason of the apparent possession of the lot in controversy. Major v. Rice, 57 Mo. 384; Hamilton v. West, 63 Mo. 93. (2) There was no claim, under any color of title, to the lot in question by the defendant or her grantor since the erection of the fence upon the premises; so that there is no evidence to establish any intention on the part of the defendant or the defendant's grantors to hold adversely. Key v. Jennings, 66 Mo 356; Redley v. West, 60 Mo. 33; Hamilton v. Boggess, 63 Mo. 233. The proof in this case fails to show any intention of adverse possession. It fails to show presumptive adverse possession. It fails to show possession under a color of title. The presumption in favor of the mistake at the time the fence was erected will continue in all cases where a dividing line between proprietors has been established by reason of a mistake, neither party waiving any rights under the misapprehension as to such a boundary line. Knowlton v. Smith, 36 Mo. 507; St. Louis University v. McCune, 38 Mo. 485; Thomas v. Babb, 45 Mo. 384; Kincaid v. Dormey, 47 Mo. 347; Tam v. Kellogg, 49 Mo. 118; Acton v. Dooley, 74 Mo. 69. (3) The court erred in holding that there was adverse possession for more than ten years, under color of title.

R. S. McDonald for defendant in error.

Respondent never having been informed of any question about the fence bounding her lot not being the true line, and having occupied and claimed it up to the fence as her own for a longer term than ten years, her title to the same was good. Draper v. Shoot, 25 Mo. 197; Bowman v. Lee, 48 Mo. 335. If the respondent went into possession of the fenced lot, and claimed it as fenced, being in ignorance of the true line as described in her deed, then her possession and occupancy was adverse to the world at large and to the true owner. Hamilton v. West, 63 Mo. 93; Major v. Rice, 57 Mo. 384.

Sherwood J...