Acton v. Dooley

• Decision Date: 10 February 1885
• Citation: 16 Mo.App. 441
• Parties: E. ACTON, Respondent, v. W. DOOLEY, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 441

E. ACTON, Respondent,

v.W. DOOLEY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 10, 1885.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

WALKER & WALKER, with whom are LUCIEN EATON and J. M. HOLMES, for the appellant: After the verdict has been received and the jury discharged, no amendment in substance is proper.-- Wright v. Philips, 2 Greene, 191; Snell v. Navigation Co., 30 Me. 337. Whenever a plaintiff amends his declaration the defendant has an election to plead de novo.-- Webb v. Wilkie, 1 Cairnes' Rep. 104; Neidenberger v. Campbell, 11 Mo. 357.

FISHER & POWELL, for the respondent: The amendment was properly allowed.--Rev. Stats., sects. 3565, 3567, 3569; Bruner v. Marcum, 50 Mo.. 405; Horskotte v. Menier, 50 Mo. 158; Jones v. Whilsett, 79 Mo. 188; Young v. Glascock, 79 Mo. 574.

THOMPSON, J., delivered the opinion of the court.

This is an action of ejectment. It is the same case which was before this court and reported in 6 Mo. App. 323, and which was before the supreme court and reported in 74 Mo. 63. It was held by the supreme court that the plaintiff was not estopped from recovering the land in controversy by his conduct in relation thereto. In the opinion of this court by LEWIS, P. J., and also in the opinion of the supreme court by Henry, J., the facts of the case and the real controversy between the parties were stated, from which it appears that the only controversy related to the boundary between the plaintiff's lot and the defendant's lot, the plaintiff claiming that the defendant had built his house and fence so as to overlap the boundary line and encroach upon the plaintiff's lot to the extent of from four to four and one-half inches. The petition, as it stood at the time of the former trial and also at the time of the trial from which this appeal is taken, describes the land as follows: “Being a strip of ground on the east side of lot number five (5), in block number nine (9), in city block number nine hundred and fifty (950), of William C. Carr's addition to said city of St. Louis, Missouri, of the width or front on Carr Street of four and one-fourth inches (4 1/4) by a depth of one hundred and fifty-three feet and nine inches to an alley; commencing at the southeast corner of said lot number five (5), thence running east four and one-fourth inches along the northern line of Carr Street in said city; thence running northwardly 153 4/12 feet to a point in the southern line of the alley north of said lot five (5), four inches west of the northeast corner of said lot number five (5); thence east four inches along the southern line of said alley to the northeast corner of said lot number five (5); thence south along the eastern line of said lot number five (5) one hundred and fifty-three and 9/12 feet to the place of beginning.” Tracing these calls on paper, it is seen that the land which the petition calls for is in the shape of two long triangles touching each other at a common point, so as to form, not one strip of ground, but two triangular pieces lying (so to speak) between the arms of a narrow and elongated letter X. This will appear from the following diagram, of which the dotted line is the eastern boundary of the plaintiff's lot, as claimed by him:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The answer was a general denial and a plea of the statute of limitations. It was filed on the 26th of April, 1877. There was a reply filed on the same day. On the issues thus made up the cause again went to trial on the 9th of April, 1884, before a jury. The plaintiff offered in evidence a stipulation of the parties to the effect that the parties derived their proper title by mesne conveyances from Wm. C. Carr, and his grantees; the defendant Dooley to lot four, and the plaintiff Acton to lot five, of block nine (now city block 950) of Wm. C. Carr's addition to the city of St. Louis, according to the plat thereof now of record in the office of the recorder of St. Louis County, to which plat reference is made. This stipulation, not to restrict or limit the range of evidence of either party. He also offered evidence tending to show that the true boundary line between lots four and five of block nine of Carr's * * * addition to the city of St. Louis, was four and one-fourth inches east of the ground occupied by defendant at the front of said lot, and four inches east of the ground occupied by defendant at the rear of said lot, and tending to prove plaintiff's right to possession of the land as described in the petition, as amended and now on file. The defendant, to sustain the issue on his part, offered evidence tending to show that the boundary line between said lots corresponded with the eastern line of the ground actually occupied by the defendant. This was all the evidence.

The court, at the instance of the plaintiff, gave the jury the following instructions: “If the jury believe from the evidence that the strip of ground in controversy belongs to and is a part of lot No. 5, in block No. 9, of William C. Carr's third addition to the city of St. Louis, and that the defendant entered into and upon said land at or prior to September 28, 1875, and held possession of the same against plaintiff on said last named date, then the jury will find for the plaintiff. If the jury find for the plaintiff, they will state in their verdict the amount of the land sued for herein for which they so find in his favor, and they will then assess the plaintiff's damages at one cent and the monthly rents and profits of said premises at the sum of one cent.” To the giving of which instruction the defendant excepted.

The defendant then requested the court to give the following instruction: “If the jury find from the evidence that the strip of ground in controversy is within the limits of lot No. 4, of block No. 9, of Wm. C. Carr's third addition to the city of St. Louis, according to the original monuments and land marks placed to define the plat of said addition, and as originally surveyed and recorded, the jury will return a verdict for defendant.” Which instruction the court refused to give, and the defendant excepted.

The court then gave, at the instance of the defendant, the following instruction: “The burden of proof is on the plaintiff Acton to establish affirmatively his claim to the strip of ground in controversy. Hence, if Dooley has paper title or deeds for lot No. 4, and Acton like title to lot No. 5, and if the strip of ground in controversy was, prior to the institution of this suit (September 28, 1875), occupied and possessed by Dooley, the burden of proof is on Acton to show by a preponderance of evidence that such occupation and possession by Dooley are actually on lot 5, and not on lot 4. And in forming their verdict, the jury will take into account all the facts and circumstances of the case as brought out in the evidence brought before them. And if Acton fails to show by a preponderance of evidence that said occupation and possession by Dooley of said strip are actually on lot 5 and not on lot 4, the jury will return a verdict for defendant.”

Thereupon the jury returned a verdict in words and figures as follows: “We, the jury in the above entitled cause, find for the plaintiff, entitling him to the possession of the following described premises, situated in the city and county of St. Louis and state of Missouri, to wit: Being a strip of ground on the east side of lot number five (5) in block number nine (9), of city block number nine hundred and fifty (950), of Wm. C. Carr's addition to said city of St. Louis, Missouri, of the width or front on Carr Street of four and one-fourth inches (4 1/4?) by a depth of one hundred and fifty-three feet and nine inches to an alley; commencing at the southeast corner of said lot number five (5); thence running east four and one-fourth inches along the northern line of Carr Street in said city; thence running northwardly 153 9/12 feet to a point in the southern line of the alley north of said lot five (5) four (4) inches west of the northeast corner of said lot number five (5); thence east four inches (4) along the south line of said alley to the northeast...