Bartlett v. Boyd

• Decision Date: 02 March 1915
• Docket Number: No. 17005.,17005.
• Parties: BARTLETT v. BOYD.
• Court: Missouri Supreme Court

175 S.W. 947

BARTLETT v. BOYD.

No. 17005.

Supreme Court of Missouri, Division No. 1.

March 2, 1915.

Rehearing Denied April 1, 1915.

Appeal from Circuit Court, Pike County Edgar B. Woolfolk, Judge.

Action by F. E. Bartlett against W. A. Boyd. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The plaintiff and defendant owned farms with a conterminous north and south boundary; defendant's farm lying north of plaintiff's, and stated in the grant to him to be bounded on the south by the land now owned by Esque Bartlett. Plaintiff brings this action of ejectment to recover a small strip of land alleged to be in the possession of defendant, but to be comprised within the north boundary of the plaintiff's farm.

On the trial, before the court without a jury, the evidence was that plaintiff purchased his farm in 1891, and defendant bought his in 1902; that an old fence ran between the farms, which was not shown to have been built on the true line of division, and plaintiff and defendant after some talk on the subject entered into the following written agreement:

"June 4th, 1903.

"This is to certify that we, the undersigned, agree that the county surveyor, D. Beauchamp, shall survey a line commencing in the middle of a rock where our two farms corner on the east and run a straight line to the rock on the northwest corner of the farm of F. E. Bartlett, the same to be the established line between our two farms, on which to build a fence. We also agree for each to pay one-half of the cost of running said line. F. E. Bartlett.

"W. A. Boyd."

A line was located under this agreement and plaintiff began some fencing work. The defendant refused to fence the portion of the line allotted to him, but served the following notice upon plaintiff:

"To Esque Bartlett: You are hereby notified that the rock in the road leading from Buffalo creek to Buffalo Church along the east side of the land now owned by you, and the land now owned by me, is the true corner stone of the northeast corner of your land and the southeast corner of my land, and that all the land lying immediately north of said corner stone and north of a line drawn west from said corner is my land; that the fence as it now stands on said line and lying between the land now owned and occupied by you and the land note owned and occupied by myself is on the line, and that I claim to own exclusively all the land lying immediately north of said fence and said line; and that I hereby forbid you, or any for you, to enter in and upon the same for the purpose of laying claim to or asserting ownership of any kind whatever, or of fencing the same or inclosing it in any way whatever, or of tearing down or destroying any fences or buildings now on the same, or in any way whatsoever of claiming or asserting ownership thereof to said land north of said line and fence, and that should you do so, or any one for you, I shall hold all " who do so as trespassers and shall hold them strictly accountable therefor.

"Of this you will take due notice and govern yourself accordingly. Given under my hand this 20th day of August, 1903. W. A. Boyd.

"Louisiana, Missouri."

Plaintiff then ceased work and brought an ejectment against defendant. Thereupon defendant took up the matter of a dismissal of the suit and a submission of the division line to arbitration, and the parties entered into the following agreement:

"Whereas, F. E. Bartlett has instituted suit in ejectment in the circuit court of Pike county, Missouri, against W. A. Boyd, for a tract of land between their farms, situated in Buffalo township, Pike county, Mo., the same being to settle the division line between said farms, where each of said parties now reside.

"Now, therefore, for the purpose of adjusting said lawsuit and settling a dispute as to the division line between our said farms, we, the undersigned, F. E. Bartlett and W. A. Boyd, agree to submit our division line dispute to arbitrators; the said F. E. Bartlett agrees mad does select F. M. Minor, and the said W. A. Boyd selects Venial Ruffin. And it is agreed between the said parties that said arbitrators shall select Charles Harris as the surveyor; if, however, he cannot serve, then said parties agree that Frank Wilson of Bowling Green shall be selected. The starting point on said division line between our farms shall commence at a point at the middle of a rock where our said farms corner on the east, and run a straight line to the rock on the northwest corner of the farm of F. E. Bartlett, and the line so run between our said farms by said arbitrators shall be the boundary and division line between our said farms. And we and each of us obligate and bind ourselves to abide by the line run by said arbitrators, in the bond hereinafter set out; that said arbitrators are to make and establish a said line within thirty days from the date of this agreement. And it is further agreed that each party shall pay one-half of the cost of said arbitrators in establishing said line. And it is agreed that each party shall pay one-half of the cost that has occurred in the suit instituted in the suit as...