Barnes v. Allison
| Decision Date | 17 December 1901 |
| Parties | BARNES et al., Appellants, v. ALLISON et al |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Reversed and remanded.
Fry & Clay for appellants.
(1) When two adjoining proprietors agree what shall be the division line and use and occupy up to such marked line for a sufficient length of time, sufficient to show the understanding and intention of the parties, it is binding on the parties and their subsequent grantees. Such use and occupancy shall be deemed and considered evidence that such line was agreed to be the division by and between the owners and the burden is on the opposite party to prove the contrary. Blair v. Smith, 16 Mo. 273; Brummell v. Harris, 148 Mo. 430; Hedges v. Pollard, 149 Mo. 216; Atchison v. Pease, 96 Mo. 566; Jacobs v. Moseley, 91 Mo. 457; Krider v. Miller, 99 Mo. 145; Schad v. Sharp, 95 Mo. 573. (2) The plaintiffs and their grantors had been in open, notorious continuous and visible possession of the land for more than ten years before defendants forcibly took possession and moved the fence. They occupied and claimed the land to the Jackson survey and no one questioned it until the defendants became the owners north of the line. Under this state of facts, defendants became the owners against the world whether there was an agreement as to the line or not, and whether defendants had proper title or not. Flyn v. Wacker, 151 Mo. 553; Atchison v. Pease, supra; Golterman v. Schiermeyer, 111 Mo. 418; Brummell v. Harris, 148 Mo. 442; Hedges v. Pollard, 149 Mo. 225. (3) If plaintiffs did make contradictory statements when defendants had McKinney make his survey, they being contrary to plaintiffs' actions in forbidding and protesting against the fence being moved and the institution of this suit for the land when forcibly taken, are of little force. "Conflicting testimony as to vague or uncertain conversations occurring after the rights of the party in possession had been fixed by possession and limitations, is not sufficient to reduce the character of the possession or to divest rights so acquired." Hedges v. Pollard, 149 Mo. 224. (4) The trial court, in its opinion, admits plaintiffs are entitled by limitations to the land at the "west end" of fence, but claims the east end of fence was not maintained on the Jackson survey. It is clear, under the evidence, the east end of the fence was changed south because of the creek and the lay of the land. In a like case this court held: "But the evidence tends to show that that resulted from a rather careless yielding of the parties, including plaintiffs and defendants, to the physical conditions of the land, than from a purpose to change the line." Brummell v. Harris, 148 Mo. 445. (5) The trial court admits plaintiffs had acquired a portion of the land sued for, by limitations, but claims the evidence did not definitely locate and fix such part and no intelligent verdict could be rendered on the testimony. This was erroneous. Witness McKinney definitely described the land south of the fence and north of his survey. The case was tried to the court, and under the evidence it could have framed an intelligent verdict. A verdict for the plaintiffs without describing the land is sufficient. Lemon v. Hartsook, 80 Mo. 21. A finding sufficiently definite could clearly have been made. Crawford v. Ahrnes, 103 Mo. 88; Meier v. Meier, 105 Mo. 433; Robertson v. Drane, 100 Mo. 273; Franklin v. Haynes, 139 Mo. 311.
T. S. Carter and Robertson & Barnes for respondents.
(1) The appellants are in error in claiming that the original proprietors of these two quarter sections had agreed upon a division line. The only proof upon that subject was given by T. P. Vance and that is insufficient to show an agreed line. Besides, not only the evidence of Vance, but that of all of the other witnesses shows that the east end of the fence never was put upon any line, and there is no evidence in the case to show where that part of the fence ever was placed till the new fence was made in 1889 by Hayth as the tenant of Hutton. Plaintiffs have no paper title to any part of the northwest quarter, and in order to recover they must establish their claim solely upon the ground of adverse possession for ten years. The land in controversy is in the northwest quarter, and not in the southwest quarter, and plaintiffs and their predecessors had possession of a part of it only eight years prior to the commencement of this action. The testimony, however, shows that plaintiffs and their predecessors only claimed to the true line, wherever that might be, and never did lay any claim to any land in the northwest quarter, and only claimed the land because they thought it to be in the southwest quarter and included in their deeds. The possession of plaintiffs and their predecessors was not adverse. When a proprietor of land, through a mistake or ignorance of the true location of the lines separating his tract from that of an adjoining proprietor and without an intention to claim beyond the true line of separation, extends his fence beyond such line and incloses a portion of the land of such adjoining proprietor, the possession thus acquired will not be adverse. St. Louis University v. McCune, 28 Mo. 481; Houx v. Batteen, 68 Mo. 84; Hackshorn v. Hartwig, 81 Mo. 648; Keen v. Schnedler, 92 Mo. 516; Skinker v. Haagsma, 99 Mo. 208; Kienze v. Evans, 107 Mo. 487; Adkins v. Tomlinson, 121 Mo. 487; McWilliams v. Samuel, 123 Mo. 659; Ernsting v. Gleason, 137 Mo. 594; Majors v. Rice, 57 Mo. 384; Hamilton v. West, 63 Mo. 93; Knowlton v. Smith, 36 Mo. 507. (2) The plaintiffs rely upon possession to establish their title. The west part of the fence was upon the Jackson line; the east part fluctuated, and the evidence does not disclose that it was ever upon the Jackson survey line till 1889. Before that time it is not disclosed where the east part of the fence was. The evidence, therefore, fails to establish the limits of the land sought to be recovered. There is nothing to fix the boundaries of the land in the possession of plaintiffs and their predecessors for a period of ten years preceding the commencement of this action or prior to defendants' possession. In the case of Hughes v. Israel, 73 Mo. 548, the court, as to this very point, used the following language: The proof in the case at bar, as in the case cited, fails to establish the plaintiffs' actual inclosure. The case of Crawford v. Ahrnes, 103 Mo. 88, and other cases cited by the appellants under their fifth point, do not in any way tend to establish a rule contrary to the case here cited. The rule is, that a finding for the plaintiffs is sufficient if the officer, when executing his writ of possession, can determine what land to deliver to plaintiffs. Who can say where the officer would make his north boundary of this piece of land?
This is an action of ejectment for a strip of land situated in Audrain county, to-wit, nine acres off of the north end of the southwest quarter, and nine acres off of the south end of the northwest quarter of section 21, township 52, range 12, west. Ouster laid as of April 12, 1898.
The answer is a general denial.
The cause was tried to the court without the intervention of a jury, and a judgment for defendant.
No instructions were given for defendant.
For the plaintiff the court gave the following declaration of law:
Plaintiffs have a paper title to the southwest quarter of section 21 and defendants have the paper title to the northwest quarter. The dispute arose over the correct line dividing the two quarter sections.
Plaintiffs claim that what is known in the record as the Jackson line was the true line and if it had been they would be entitled to recover, but if the Jackson line was not the true line, they seek to recover on it as an agreed line, and by adverse possession.
In 1855, a surveyor named Jackson bisected the west half of this section by running a line due east from the quarter section corner on the west line of the section, and gave that to the proprietors north and south of the line as the true line. Then at the center of the section he dropped south 2.5 chains, ran angling to the quarter section corner on the east side of the section. The east half of the section is now and has always been occupied in accordance with the Government survey.
The following plat shows the true lines and corners of section 21, as made by the United States Government:
[SEE ILLUSTRATION IN ORIGINAL]
Jesse Vance was the first occupant of any part of the southwest quarter, and Peyton Mahan the northwest quarter. From Jesse Vance it passed to James Vance; from James Vance to Hopkins and Ricketts; and from Hopkins and Ricketts to Smith, and from him to the Barneses, the plaintiffs.
While the petition counts upon an ouster of nine acres in the southwest quarter, the evidence shows that the land plaintiffs seek to recover is in...
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