Anson v. Tietze

• Decision Date: 05 November 1945
• Docket Number: 39468
• Citation: 190 S.W.2d 193,354 Mo. 552
• Parties: George W. Anson, Appellant, v. Paul F. Tietze and Maude Cole Tietze, his wife, T. D. Woodward, Lewis Arvieux and Lucy Arvieux, his wife, J. W. Lee, Carrie Whitney, a widow, Sherman Wilson and Dovy Bridgewater Wilson, his wife, Crown Hill Cemetery Association, Clyde Heynen, President, and the City of Sedalia, Missouri, a Municipal Corporation
• Court: Missouri Supreme Court

190 S.W.2d 193

354 Mo. 552

George W. Anson, Appellant, v. Paul F. Tietze and Maude Cole Tietze, his wife, T. D. Woodward, Lewis Arvieux and Lucy Arvieux, his wife, J. W. Lee, Carrie Whitney, a widow, Sherman Wilson and Dovy Bridgewater Wilson, his wife, Crown Hill Cemetery Association, Clyde Heynen, President, and the City of Sedalia, Missouri, a Municipal Corporation

No. 39468

Supreme Court of Missouri

November 5, 1945

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Reversed and remanded (with directions).

George W. Anson for appellant.

(1) Section 1011, Revised Statutes of Missouri went into effect August 1, 1866 and since that date the Statute of Limitations will not run against the class of institutions and persons named in the statute or by fair inferences included in its provisions. Dice v. Hamilton, 178 Mo. 81; City of Columbia v. Bright, 179 Mo. 441; Moore v Helvy, 235 Mo. 443. (2) The law does not favor the acquisition of title to land by adverse possession and the burden is cast upon the defendant to make out its claim of title by adverse possession and when it is sought to establish "in pais" a divestiture of a citizen's landed property without compensation in favor of the public the proof should be so cogent, persuasive and full as to leave no reasonable doubt of the existence of the owner's intent and consent. Fiorella v. Jones, 259 S.W. l.c. 785; Johnson v. Ferguson, 329 Mo. 363; Landis v. Hamilton, 77 Mo. l.c. 561. (3) The trial court was in manifest error, in its assumption that there had been an abandonment, in order to set in motion the statute of limitations and then failed to say when said statute became operative. Abandonment, as defined in our law, must include an intention to abandon coupled by the external act by which the intention is carried into effect. The two must concur. It must be made to appear affirmatively by the party asserting it that there was an abandonment. It cannot be presumed. Pecoke v. Peterson, 256 Mo. 501, 165 S.W. 1017; Powell v. Bowen, 279 Mo. 280; Doherty v Russell, 116 Mo. 269; Tillman v. Melton, 350 Mo. 160; Strother v. Barrow, 246 Mo. 241. (4) The fact that the college building had been destroyed by fire and not rebuilt is not an abandonment, the land was retained under the supervision, control, possession, and in fee simple title of the Board of Education for Negroes of the Methodist Episcopal Church, apparently pending the time when circumstances or a change of policy or conditions might permit utilization for college purposes. St. Louis-S.F. Railroad Co. v. King, 329 Mo. 1203, 50 S.W. 2; Fugate v. Pierce, 49 Mo. 441; Tillman v. Melton, supra. (5) There must be an actual possession by defendant with the manifest intention brought home to the owner to claim title adversely and over a period of ten years. Mistaken line will not impart intention. Brannock v. McHenry, 252 Mo. 1; Collins v. Pease, 146 Mo. l.c. 140; Estes v. Long, 71 Mo. l.c. 609. (6) Where the true line separating adjoining real estate is unknown to either party and no contract made establishing the line, and a fence mistakenly placed on the supposed line will not invest title in land wrongly enclosed. Shad v. Sharp, 95 Mo. 573; Matson v. Calhoun, 44 Mo. 368; Patton Smith, 171 Mo. 231; Ackerman v. Ryder, 308 Mo. 9, 271 S.W. 743; Corrigan v. Early, 183 S.W. 574. (7) The uncertainty of the true line separating the lands of defendants, from the land of plaintiff, was pleaded in plaintiff's petition and not controverted by answer, and must be treated as confessed, the statute of limitations will not therefore, apply, because there can be no intent, to appropriate land beyond an unknown line. State ex rel. v. Henderson, 86 Mo.App. 482; Kansas City v. McDonald, 118 Mo.App. 471; Boles v. Bennington, 136 Mo. 522. (8) In addition to the lack of knowledge of the true line separating the lands of plaintiff from defendants, the testimony of Maude Cole Tietze, Paul F. Tietze, Mrs. Alice Stargill Lee, Louis Arvieux, clearly impress the use of the various strips of land, sought to be taken from plaintiff and handed over to defendants, as permissive in its inception, and such permissive character will continue until a distinct and positive assertion hostile to the owner and brought home to him can transform a subordinate and friendly holding into one of an opposite nature and independent in character. Pitzman v. Boyce, 111 Mo. l.c. 392; Budd v. Collins, 69 Mo. 129.

D. S. Lamm and Henry C. Salveter for respondents.

(1) In its answer and evidence the city claimed to and including the fence and this is true irrespective of the fact doubt may exist concerning the exact location of the true line. So far as the city knows the fence may be the true line, and in any event the city claimed the land to the fence since 1879 and its possession is adverse to all land within its enclosure. Pioneer Cooperage Co. v. Dillard, 59 S.W.2d 642; Tillman v. Hutcherson, 154 S.W.2d 104; Brown v. Wilson, 155 S.W.2d 176; Brown v. Wilson, 131 S.W.2d 848. (2) The facts in the case at bar are such that long acquiescence in the fence as the boundary line will warrant the presumption that it was the agreed line. Tillman v. Hutcherson, 154 S.W.2d l.c. 106. (3) The decree is correct in making no finding with reference to public streets, if any, in the tract described in the petition, the rule being that a person, even by adverse possession, can not acquire title to a public street. Columbia v. Bright, 179 Mo. 441; McGrath v. Nevada, 188 Mo. 102. (4) Sec. 1011, R.S. 1939 provides that nothing contained in any statute of limitation shall extend to lands given, granted, sequestered or appropriated to any public, pious or charitable use. Clearly the use of said college was not "public" and neither under the evidence was it "pious or charitable" within Sec. 1011, but even if said use was ever "pious or charitable" under the evidence such use has been abandoned since 1925 and all the elements of abandonment exist here. State ex rel. Morris v. Bd. of Trustees of Westminster College, 175 Mo. 52; Strother v. Barrow, 246 Mo. 241; Wyatt v. Stillman Inst., 260 S.W. 73; Sec. 1011, R.S. 1939. (5) Appellant Anson does not sue in behalf of or for Bd. of Education for Negroes of Methodist Ep. Church but sues in his own individual right and therefore the reason for the application of Sec. 1011 fails, the rule being that Sec. 1011 was not intended to be a weapon in the hands of an individual for himself but was intended to preserve lands given, granted, etc., to a pious or charitable use to that use. Dudley v. Clark, 255 Mo. 571. (6) A corporation established for education in literature, arts and sciences is not a religious corporation even though it be given in the care of a religious body which appoints its trustees (State ex rel. Morris v. Bd. Trustees Westminster College, 175 Mo. 52) and neither is a corporation organized to train colored youth in academic, collegiate, industrial and theological subjects (Wyatt v. Stillman Inst., 260 S.W. 73) and appellant has not met the burden to bring him within Sec. 1011. (7) Abandonment of a pious use requires intent to abandon permanently and the physical fact of nonuser for religious purposes, and both elements conjoin under the facts in the case at bar since 1925 to create abandonment, even if the court should believe that at one time the property was used for a pious or charitable use. Strother v. Barrow, 246 Mo. 241.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Action to quiet title, the land involved being situate within the corporate boundaries of the City of Sedalia and portions of a tract known as the George R. Smith college property. The City of Sedalia and certain individual defendants claim title by adverse possession to separate roadways over the land. A principal issue turns on Sec. 1011, R.S. 1939, reading: "Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use . . ." Plaintiff contended the land had been devoted to a "pious use" up to 1943, when he received his deed. Defendants, among other things, contended, if ever there had been a pious use of the lands, that such use long since had been abandoned and the statute of limitation started to run upon such abandonment. Plaintiff also contends the individual defendants established nothing more in law than a permissive user of the land. The trial court found for the defendants. We think the judgment should be affirmed as to defendant City of Sedalia but reversed and remanded as to the individual defendants.

Plaintiff's petition is in conventional form. Defendant City's answer asserted title by adverse user to a strip used for roadway purposes on the east side of plaintiff's land, asking a judgment quieting its title. Plaintiff's reply set up the nonapplicability of any statute of limitation on the theory the land was devoted to a "religious, pious and educational" use and also on the theory there was no agreement establishing the true boundary line between the lands but each owner mistakenly believed the fence to be the true line; and also pleaded that if the statute of limitation was ever set in motion, it was tolled when the land was devoted to a "pious" use. Paul F. Tietze and Maude Cole Tietze, his wife, Lewis Arvieux and Lucy Arvieux, his wife, and J. W. Lee filed joint and several answers in which they asserted a right in themselves and the public to a 20 foot roadway by adverse user for more than 31 years, describing the roadway in general terms.

The case was tried to the court. Plaintiff requested five declarations of law. The court gave one and refused the others. The court found plaintiff the owner of the land excepting the...