Benne v. Miller

• Decision Date: 31 March 1899
• Parties: Benne v. Miller et al., Appellants
• Court: Missouri Supreme Court

50 S.W. 824

149 Mo. 228

Benne v. Miller et al., Appellants

Supreme Court of Missouri, First Division

March 31, 1899

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Reversed and remanded.

Wm. H Clopton for appellants.

(1) The law is that every riparian proprietor is entitled to a frontage of the same width on the new shore as on the old without regard to the side lines of the upland, except where the new shore is longer or shorter than the old, when a ratable distribution of the accretions is ascertained. Gould on Waters, sec. 162; Crandall v. Allen, 118 Mo. 403. (2) The first, second, third and fourth instructions given for the plaintiff are erroneous, because they assume: First, that the plaintiff had shown a legal title to the whole tract sued for; secondly, they are erroneous in that they direct the jury that the statute of limitations, in defendants' favor, must have run ten years in favor of the defendants prior to February 23, 1881, when plaintiff's ancestor died; third, the instructions are erroneous because they define adverse possession to be entirely dependent upon clearing, cultivating or fencing the land. Wilkerson v. Eilers, 114 Mo. 245; Grant v. Moore, 128 Mo. 49; Nye v. Alfter, 127 Mo. 529. The death of the ancestor in 1881, against whom the statute had begun to run, did not stop the running of the statute of limitations. Pim v. St. Louis, 122 Mo. 666; Rodgers v. Brown, 61 Mo. 187; Cunningham v. Snow, 82 Mo. 587. (3) The third instruction is illogical, unintelligible, and is erroneous in that it directs the jury that adverse possession can only be maintained by clearing, cultivating or fencing, when the law is that adverse possession may be maintained by such acts as will advise the true owner (if there be one) of the fact that the land is claimed adversely to him, and such possession is determined in a great measure by the character of the land in controversy. (4) The instructions as given were inconsistent, repugnant and contradictory. In instruction number 1 given for defendants, the court tells the jury that a riparian owner's river front can not be encroached upon, whereas in instruction number 3 for plaintiff he tells the jury that by the plaintiff's deed he owned all the lands sued for. Neuscher v. O'Bannon, 56 Mo. 289; Stevenson v. Hancock, 72 Mo. 612; Stone v. Hunt, 94 Mo. 475; Schen v. Lemp, 17 Mo. 142; State v. Hewett, 97 Mo. 105; Cooley v. Warren, 53 Mo. 166; Rutherford v. Tracy, 48 Mo. 325; Grant v. Moon, 128 Mo. 49; Marshall v. Bumpal, 18 Mo. 84.

R. H. Stevens for respondent.

(1) The court is the sole judge of the legal effect of the deeds read in evidence taken in connection with all the evidence in the case and must so instruct the jury. Tyler v. Hall, 106 Mo. 313; Slayback v. Gerkhardt, 1 Mo.App. 333; Nicholson v. Golden, 27 Mo.App. 132. (2) The jury, by their verdict, gave to appellants all the land Suess had in actual possession, up to and including the year 1886, therefore the clause in the instructions prior to the death of William Benne, father of plaintiff, February 23, 1881, could not and did not in any manner injure appellants. Long v. Fairbanks, 91 Mo. 635; R. S. 1889, sec. 2303; Ryan v. Kelley, 9 Mo.App. 596. (3) The appellants have no color of title and the disseizin will only extend to the part actually occupied. They are mere trespassers and are entitled to no relief in law or equity. Smith v. McCorkle, 105 Mo. 136, 141; Schutz v. Lindell, 30 Mo. 310; St. Louis v. Gorman, 29 Mo. 593; Chapman v. Templeton, 53 Mo. 463; Rannells v. Rannells, 52 Mo. 108. (4) Instructions must be based upon the evidence and the only evidence offered by appellants to show possession was clearing, fencing and cultivating. (5) Instruction number 10 asked by appellants was properly refused by the court because the fact that the United States Government cut willows from the land in dispute and paid Suess does not in any manner tend to prove possession in Suess. It was not an act done by Suess and it does not of itself constitute open, notorious, continuous and adverse possession. Pharis v. Jones, 122 Mo. 125; Cook v. Farrah, 105 Mo. 492; Ward v. Ihler, 132 Mo. 375; Herbst v. Merrifield, 133 Mo. 262; Carter v. Hornback, 139 Mo. 238; Crawford v. Ahrens, 103 Mo. 88. (6) Instruction number 1 asked by appellants was properly refused by the court because accretions as they are formed take the title to the land just as it exists at the time of its formation. Campbell v. Laclede Gas Light Co., 84 Mo. 372. (2) The verdict of the jury is definite and certain and it is sufficient. Crawford v. Ahrens, 103 Mo. 88; Buse v. Russell, 86 Mo. 209.

OPINION

VALLIANT, J.

This is an action in ejectment begun in 1895 for a tract of land fronting on the Mississippi in St. Louis county.

The petition is in the usual form.

The answer does not deny any of the allegations of the petition, but admits the possession, and pleads affirmatively that defendants and those under whom they claim have been in actual adverse possession for more than ten years prior to the institution of this suit. Nevertheless at the trial the parties on both sides and the court treated the case as if the plaintiff was put to his proof, and so it will be treated here.

The land in actual dispute is an accretion formed by river deposits. Plaintiff introduced evidence tending to show a title to the land to which this is an accretion, regularly derived from the Government.

Defendants introduced evidence tending to show title by adverse possession beginning in 1874 and continuing to the date of the trial. That portion of the river bank covered by defendant's claim under adverse possession is a small triangle, having the old bank for its base, embraced in the larger tract which plaintiff's paper title covers.

A discussion of the evidence will not be necessary except as incidental to the consideration which we will give to the instructions.

At the close of the case the court instructed the jury, on behalf of the plaintiff, as follows:

"1. The court instructs the jury that the plaintiff is entitled to recover the possession of all the lands sued for, except so much thereof as was taken possession of by the defendants, or those under whom they claim, if any, prior to the death of William Benne, father of the plaintiff, February 23d, 1881, and held openly, notoriously, continuously and adversely for a period of ten years, and the jury must find a verdict for the plaintiff for the land not so taken possession of and held as above stated.

"2. The court instructs the jury that the deeds from Jacob Suess to Charles Lewis, and from Charles Lewis to M.F. Taylor, and from M.F. Taylor to Louis Kolas, and from W.H. Clopton offered and read in evidence by defendants, did not give defendants color of title to the land in dispute, and plaintiff is entitled to recover all the lands in dispute not cleared and cultivated, or fenced, prior to the death of William Benne, father of the plaintiff, February 23, 1881, and the possession was taken and continued open, and notoriously and adversely, for ten years after clearing, cultivating or fencing the same.

"3. The court instructs the jury that the plaintiff, by his deeds offered and read in evidence, and by evidence that the land was formed by accretions to United States survey 1958, have established a perfect title to the land in dispute, and the verdict of the jury must be for the plaintiff, unless they further find from the evidence that the defendants, or those under whom they claim, entered into possession of the land in dispute prior to the death of William Benne, father of the plaintiff, February 23d, 1881, and held open, notorious and continuous, and adverse possession by clearing, cultivating or fencing for ten years.

"4. The court instructs the jury that the defendants have not shown any color of title to the land in dispute, and they must find for the plaintiff for all the lands which the defendants or those under whom they claim did not clear and cultivate or put under fence prior to the death of William Benne, father of the plaintiff, February 23d, 1881."

The court was asked to instruct the jury as follows by the defendants:

"1. The court instructs the jury that if they believe from the evidence that Jacob Suess cleared and cultivated the land east of the old levee, beginning at an old stone in the southeast corner of lot No. 7, of the Destrahan tract, and running eastwardly at right angles to said old levee toward the Mississippi river, and that he and those under whom he claims title have been in the open, public, notorious and adverse possession thereof, claiming title thereto for more than ten years prior to the institution of this suit, plaintiff is not entitled to recover any part of the land so occupied, nor any part of the accretions thereto."

Before giving that instruction as asked, it was modified by erasing these words: "nor any part of the accretions thereto," and substituting for said words the following: "by said Suess or his successors or assigns."

"2. The court instructs the jury that under the law of this State, persons owning land on or bounded by the Mississippi river own to the water's edge, and when the water recedes gradually and land is made thereby, the owner of the land bounded by the river is owner of the land so made, and such owner's rights to such made land remains equal to his river front and such riparian rights can not be encroached upon by adjoining owners so running their boundary lines as to diminish such river front or accretions.

"3. The court instructs the jury that the term accretion as used in the instructions in this case means portions of soil added to that already in possession of the owner by gradual deposit caused by a...