Bast v. Mason

• Decision Date: 04 June 1912
• Citation: 148 S.W. 398,165 Mo. App. 718
• Parties: BAST v. MASON.
• Court: Missouri Court of Appeals

148 S.W. 398

165 Mo. App. 718

BAST v. MASON.

St. Louis Court of Appeals. Missouri.

June 4, 1912.

1. APPEAL AND ERROR (§ 1001) — REVIEW— VERDICT—CONCLUSIVENESS.

A verdict supported by substantial evidence is conclusive on appeal.

2. DEEDS (§ 117)—FENCES—APPURTENANCES.

A fence located wholly on a lot is appurtenant to it.

3. APPEAL AND ERROR (§ 692)—EXCEPTIONS— GROUNDS OF REVIEW — SETTING OUT EVIDENCE.

Where exception to the exclusion of evidence does not show what the answers of the witnesses would have been, or whether their answers would have thrown any light upon the points in issue, there is nothing open to review.

4. APPEAL AND ERROR (§ 1033)—PARTY ENTITLED TO COMPLAIN—REFUSAL OF INSTRUCTIONS —ADMISSION BY INSTRUCTIONS.

In an action for damages for the removal of a fence, defendant cannot complain of the refusal of instruction that if plaintiff, before he purchased the lot from defendant, examined it and saw the location of the fence, and if, in purchasing the grounds from defendant, he intended to purchase and did purchase the land between the fence and the other line of his lot, then plaintiff could not recover, since the instruction admitted that, when plaintiff purchased the lot, he saw that the fence was on it.

5. FENCES (§ 27)—REMOVAL—DAMAGES—INSTRUCTIONS.

In an action for damages for the removal of a fence, an instruction that if plaintiff, before he purchased the lot from defendant, saw the fence on the lot, noted its location, and if plaintiff intended to purchase and did purchase the ground between the fence and the other line of his lot, then plaintiff could not recover, was properly refused, since it did not call attention to any acts which might have indicated such intention on the part of the plaintiff.

6. DEEDS (§ 118) — PROPERTY CONVEYED— DEED AS MEASURE OF TITLE.

A deed is the measure of the grantee's title, and he is conclusively presumed to have purchased all the ground between the lines called for by his deed.

7. DEEDS (§ 118)—PROPERTY CONVEYED—EVIDENCE —PRESUMPTION.

In the absence of allegations of fraud or mistake, a purchaser cannot be assumed to have intended to purchase anything not covered by his deed.

8. FIXTURES (§ 21)—FENCES—PART OF FREEHOLD.

A fence is part of the freehold, and passes along with the land on which it is built.

9. BOUNDARIES (§ 46)—AGREEMENT BY OWNERS.

A fence put up by agreement between landowners may be binding as to them; but it is not binding as to a third party without notice of such agreement or assent thereto.

10. TRIAL (§ 260) — HARMLESS ERROR—INSTRUCTIONS.

In an action for damages for the removal of a fence, where the jury were clearly instructed as to the matters of the location of the fence with reference to the lots and the rights of the respective parties as dependent thereon, the refusal of an instruction that if, at the time the fence was erected by defendant, plaintiff's grantor, there were stakes set in the line between the two lots to designate the line between them, and that the defendant built the fence on that line, plaintiff could not recover, was not reversible error.

11. DEEDS (§ 74)—DESCRIPTION — RIGHT OF PURCHASER—ESTOPPEL.

A grantee has a right to rely on the description of the land as given in his deed and shown on the recorded plat, unless estopped by some act of his own.

12. BOUNDARIES (§ 4) — DESCRIPTION—PERMANENT MONUMENTS.

Wooden stakes or pins, about an inch square, driven by an auctioneer at points supposed to be the corners of lots in a block, do not constitute permanent monuments.

13. BOUNDARIES (§ 3) — DESCRIPTION—CONTROL OF DEED.

A grantor and his grantee are bound by the description in the deed, and by the description of the lot as found in the recorded plat of it, and not by temporary stakes set in the ground, as locating or bounding the lot.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by C. A. Bast against John T Mason. Judgment for plaintiff, and defendant appeals. Affirmed.

F. R. Jesse, of Mexico, Mo., for appellant. Fry & Rodgers, for respondent.

REYNOLDS, P. J.

This is an action to recover $25 actual damages and $100 punitive damages, brought by plaintiff against defendant for the alleged unlawful, wanton and malicious removal of a fence between their two lots, the lots situated in the city of Mexico, plaintiff claiming that the fence was wholly upon his lot No. 3, in block 4, of H. P. Warden's Addition to the city of Mexico, whereas defendant claims that the fence was wholly upon his lot No. 2 of the same block and addition, the two lots adjoining, that of plaintiff being immediately south of that of defendant, each lot, according to the plat and deeds, supposed to have a width of 75 feet on Jefferson street in that city.

At the conclusion of the trial the jury returned a verdict for plaintiff, awarding him $1 actual damages but finding no punitive damages. Interposing a motion for new trial and excepting to it being overruled, defendant has duly perfected appeal to this court.

It is true that the amount involved in this case is small but as usual in the case of disputed boundaries the real controversy turns on the boundary line between the two lots, so that the case warrants careful consideration, its importance not being measured by the mere nominal amount of the award of damage. As is also usual in cases of this kind, a great mass of conflicting testimony as to the actual boundary line between these two lots was taken, the abstract of the evidence in this case, exclusive of the record proper and as set out in the abstract of the bill of exceptions and exclusive of the instructions, covering some 245 pages.

The weight of the evidence as to where the fence in controversy and which defendant removed, was actually located with respect to the two lots, that is whether it was on lot 2 or lot 3, is not open for our determination. The verdict of the jury finds it was located wholly upon lot 3. That verdict is supported by substantial testimony. Being so located, the fence was appurtenant to lot 3, Climer v. Wallace, 28 Mo. 556, loc. cit. 559, 75 Am. Dec. 135, and admittedly that lot was purchased by plaintiff from defendant and belongs to plaintiff.

The only questions open to us on this appeal arise over the admission and exclusion of testimony and the giving and refusal of instructions. These questions are covered by three assignments of error made by the learned counsel for appellant, defendant below: First, that the court erred in refusing instructions requested by appellant; second, that the court committed error in giving instructions on behalf of respondent, and third, that it committed error in admitting incompetent and improper testimony offered in behalf of appellant. Learned counsel for appellant have taken up these questions in inverse order and we will follow them in that course.

The error complained of as to the exclusion of evidence is as to the evidence of four witnesses, one of them the defendant, it being...