Bell v. Barrett

• Decision Date: 16 November 1934
• Docket Number: No. 32224.,32224.
• Citation: 76 S.W.2d 394
• Parties: BELL et al. v. BARRETT et al.
• Court: Missouri Supreme Court

76 S.W.2d 394

BELL et al. v. BARRETT et al.

No. 32224.

Supreme Court of Missouri, Division No. 1.

November 16, 1934.

Appeal from Circuit Court, Oregon County; H. D. Green, Judge.

Action by J. E. Bell and another against J. L. Barrett and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Dorris & Dorris, of Alton, for appellants.

Barton & Moberly, of Houston, for respondents.

HYDE, Commissioner.

This action is ejectment. It is dispute over the line between adjoining landowners. Plaintiffs claimed through the record title. Defendants claimed title by adverse possession. Both parties also, by their pleadings, asked that title be quieted in them. The case was tried before the court sitting as a jury which found for the plaintiffs. From the judgment that plaintiffs recover the land and have their title quieted thereto, defendants have appealed.

Plaintiffs owned 80 acres of land east of defendants' farm of 240 acres. The controversy is over a strip of land, 200 feet in width, off the entire west side of plaintiffs' south 40, described as the southwest quarter of the northeast quarter of section 32, township 26 north, range 3 west. It was stipulated that plaintiffs had the record title to this 40, including the disputed strip off of the west side, thereof described in their petition. It was shown by the surveyor who ran the line between the two farms that defendants' fence inclosing a part of the disputed land was on plaintiffs' 40, and during his testimony it was admitted by defendants' counsel "that there is no dispute about the description. The question is whether or not they have had possession long enough to acquire title." The same surveyor had previously made a survey for defendants, by which he determined that the line did not go "as far east as Mr. Barrett thought it would." The surveyor's plat is not preserved in the bill of exceptions, but, from the above admission, there was apparently no dispute about the correctness of the line he located between the land described in the respective deeds of the parties.

Defendants had owned their farm and had been in possession of the disputed land less than ten years. It was said that the disputed strip contained about 15 acres, only about 5 or 6 acres of which was fenced, but defendants' evidence was that they claimed the land to the line of their fence, all the way across plaintiffs' 40, regardless of whether their deed called for it, whether fenced or not. Plaintiffs' evidence was that defendants' fence did not run straight north and south; that their fence was about a half a quarter long north and south; that it inclosed a tract of land near the center of the disputed tract along the west side of plaintiffs' 40; that north of the inclosed part were woods which were not fenced; that there were also woods on plaintiffs' 40 south of the inclosed part; and that there was no fence on the farm south of it. Defendants' possession not being long enough of itself, their claim to the land by adverse possession was based upon the adverse possession of their grantor, Mr. Dowler, who testified that of the 240 acres in the farm only about 65 acres were fenced; that the low land was not fenced; that plaintiffs' grantor, Mr. Albert, put up a fence on plaintiffs' 40 before he put up his fence; that he cleared a triangular strip of ground the year before he put up his fence; and that he built it near Albert's fence, but far enough west of it to leave a lane between the two farms. At that time there was no other fence on the line, but he put his fence where he thought the line was, according to the corner as he located it by three large rocks and some trees, which he believed were supposed to be witness trees. He said that he for thirteen years held and claimed the land he cleared and fenced as his own; that he never expected to recognize any other line; that he never heard any dispute about it; and that he showed the fence to plaintiffs as the line when he sold them the farm.

On cross-examination Dowler testified further as follows:

"Q. You cleared up some new land and put your fence there, because you thought that was where the true line was? A. Yes, sir.

"Q. The only reason you put your fence there was because you thought that was the line? A. Why, certainly.

"Q. You never at any time expected to claim more than 240 acres, as your deed called for? A. Sure, not.

"Q. And if at any time that line should have been run by a duly authorized surveyor, would you have expected to hold that land which didn't belong to you, as was not called for by your deed? A. Well, I would want to know that the surveyor knew his business.

"Q. You would want to know it was the true line? A. You bet I would.

"Q. You never at any time held that land knowing it was outside of the true line? A. No, sir; sure not.

"Q. If the true line has been shown there — and if you were satisfied it was the true line? * * * A. Yes, sir, but I would have to have been shown."

He then testified as follows, on redirect examination:

"Q. Were you claiming that to be the line? A. Certainly.

"Q. He asked you if you would have claimed it, if the survey showed it was not the true line. A. I would have until I was convinced that it was not the true line. * * *

"By the Court: Q. Did you claim it for the reason that you had possession of it and used it; or did you claim only to the real line of that forty in dispute — did you claim a certain number of acres, or did you claim just up to this lane, regardless of whether or not it was the true line? A. No, sir, I didn't claim it regardless — I thought that was the true line. Mr. Brown lived there 50 years; he showed me the corners of the place — he had lived there.

"Q. In other words you claimed it because you thought it was the true line? A. Certainly."

Later he was recalled and gave the following testimony: "Q. I will ask you to state to the Court whether or not you claimed all of this land in dispute, regardless of any other line? A. Yes, up to this line I have been shown by my father-in-law."

Recross-examination:

"Q. You mean to say you claimed that regardless of where the true line actually was? A. I considered that the true line.

"Q. You considered that the true line? A. Yes, sir.

"Q. But you don't mean to come back now and say that if it had been established to you that it was not the true line, you would have claimed it, regardless of the true line? A. I would have claimed it to the last ditch.

"Q. Have you changed your mind about it? A. I didn't understand the question before. * * *

"By the Court: Q. Here is the question the Court wants to know — Were you claiming just simply to the fence there and to the lane or did you claim to the true line as it actually existed; and if you were mistaken about the line did you intend to claim this land, regardless of where the line was? A. I claimed it regardless of where the line was.

"Q. If you had found out afterwards the line was different, you expected to claim it regardless of the line? A. I intended to claim it up to that lane, because I had been shown that was the line. * * *

"Q. Did you intend to claim more than 240 acres? A. I intended to claim what the deed calls for, 240 acres more or less.

"Q. Did you think it called for this land, up to that line? A. Yes, sir."

Defendants' contention here is that the judgment is for the wrong party. They contend that Dowler's testimony conclusively showed sufficient adverse possession, that the defendants, under his adverse possession and their own, were entitled to hold the land to the line of the fence, and that the court could not under the evidence find for plaintiffs. It is significant, however, that the record does not show that defendants asked for a directed verdict at the close of the whole case, but instead asked for a declaration of law outlining the theory upon which they were entitled to recover. Plaintiffs also asked for a declaration of law stating the findings which the court must make before the court could find in their favor. The court gave both of these declarations, and they correctly state the law hereinafter enunciated and are consistent with each other. Therefore, since this case is an action at law, the only question before us is whether there is substantial evidence to support the judgment of the court and the findings it necessarily made to find for plaintiffs, because, if there is substantial evidence to support them, they are conclusive here. Chostner v. Schrock (Mo. Sup.) 64 S.W.(2d) 664; Courtner v. Putnam, 325 Mo. 924, 30 S.W.(2d) 126, and cases cited; Huttig v. Brennan, 328 Mo. 471, 41 S.W.(2d) 1054.

The evidence, of course, shows that defendants and their grantor had possession of the land for more than the statutory period of limitations, but possession alone is not sufficient to put the statute in operation. There must be an unequivocal claim of ownership to make the possession adverse. Therefore, in cases where there is a dispute over the boundary line between contiguous lands between which there is a line marked by a fence, the question is "whether the party in possession of the land in controversy claims ownership of the land only to the true line, wherever that might be, or whether such party claims ownership of the land to the fence." Courtner v. Putnam, 325 Mo. 924, 30 S.W.(2d) 126, loc. cit. 130. The rules of law by which this question is to be determined have been thus concisely stated: "If any one, by mistake, inclose the land of another and claim it as his own, his actual possession will work a disseizin, but if ignorant of the boundary line, he makes a mistake in laying his fence, making no claim, however, to the land to the fence, but only to the true line as it may be subsequently ascertained, his possession is not adverse." Cole v. Parker, 70 Mo. 372; Courtner v. Putnam, 325 Mo. 924, 30 S.W.(2d) 126, loc. cit. 130. "The distinction between these rules lies in the fact whether the party...