Boas v. Branch

• Decision Date: 30 December 1918
• Docket Number: No. 19535.,19535.
• Citation: 208 S.W. 75
• Parties: BOAS v. BRANCH.
• Court: Missouri Supreme Court

208 S.W. 75

BOAS v. BRANCH.

No. 19535.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Action by John R. Boas against Phillip Q. Branch, in which Mrs. Virginia M. Clement was allowed to defend in behalf of P ranch as her tenant. Issues found in favor of defendant, judgment rendered accordingly, and plaintiff appeals. Affirmed.

On October 27, 1913, plaintiff filed in the circuit court of Ste. Genevieve county, Mo., a suit in ejectment, against defendant, Phillip Q. Branch, to recover possession of certain land located in above county and described by metes and bounds in said petition. The date of ouster is named as November 15, 1910. Plaintiff, in his petition, sought to recover damages, etc. On the application of plaintiff, the venue was changed to Jefferson county circuit court, and tried there before Judge Dearing without a jury. The defendant answered with a general denial.

The case was reached for trial on June 10, 1915. After reading the pleadings the following occurred:

"Mr. Boas: If your honor please, I now desire to read a motion to rescind your ruling heretofore made, permitting Mrs. Virginia hi. Clement to defend this action, which is as follows (caption omitted):

"`The plaintiff moves the court to rescind its ruling, heretofore made in the above-entitled cause, permitting Mrs. Virginia M. Clement, over plaintiff's objection, to defend said action, without becoming a party thereto, and without filing an answer therein.

"`(1) Because she was not made a party defendant thereto.

"`(2) Because she has not asked, on her own motion, to be made a codefendant of said Branch in the defense of said action.

"`(3) Because she has not filed any answer, or other pleading in said cause.

"`(4) Because no issue in said case can arise or be tried between her and the plaintiff. "`(5) Because no judgment can be rendered against her.

"`(6) Because she would not be responsible for costs in any event.

"`(7) Because, not being a defendant, none of the conditions, relations, or responsibilities of a party to an action exist in her position; as she is a stranger to said proceeding.

"`(8) Because the court has no jurisdiction over her.'"

This motion was overruled, and an exception saved by plaintiff.

We gather, from the indefinite maps and facts of the case, that the land in controversy lies east of the Frisco railroad and the Clement farm; that it is bounded on the south by Establishment creek, and the eastern boundary is a slough from 400 to 500 feet wide, running from northwest to southeast; that the general direction of Establishment creek, on the south side of said land, is east and west; that the latter empties into above slough, and the latter empties into the Mississippi river near the southeast corner of said land; that the general direction of the Frisco railroad is northwest and southeast; that there is a clubhouse south of Staples Spring branch, east of the Frisco railroad, and north of Establishment creek, west of the land in controversy; that Bruce's Island, claimed by plaintiff, lies :north and east of the above slough; that the Mississippi river, or a portion thereof, formerly ran between said island and the above slough.

Plaintiff's Evidence.

Appellant says he offered in evidence a certified plat from the secretary of state, where the archives of the government are located, of survey No. 2090. He claims that the land in controversy was a part of the land in said survey 2090, located east of the mouth of Establishment creek. The above was marked Exhibit 1. It was before the trial court, but is not set out in the record, and the latter recites that it was not among the files. Plaintiff next offered in evidence his Exhibit 2, which he claimed disclosed that the title to the land in survey 2090 had passed out of the government. Exhibit 2 was objected to by defendant, for the reason that it showed no connection between it and said Exhibit 1. As the latter is not before us, we are in no position to determine this question. Plaintiff offered in evidence a plat marked as his Exhibit 3, which was objected to by defendant, is not printed in the record, and is not before us. Plaintiff next offered in evidence, without objection, his Exhibit 4, purporting to be a plat of a United States survey made by the engineering department. This is not printed, and the record recites that it was not among the files. Plaintiff next offered some photographs marked as his Exhibits numbered 5, 6, and 7, which are not set out in the record and which the latter recites are not among the files.

Plaintiff read in evidence the deposition of A. Martin. He testified in chief, in substance, that he was 52 years old, was a farmer at Mounds, Ill.; that in 1900 and 1901 he lived at Brickeys, Mo., which was about 3 miles from Establishment creek; that in August or September, 1901, he helped plaintiff build a substantial four galvanized wire fence on the land in question; that there was a slough between the main bank and the land he and plaintiff fenced; that the slough extended the whole length of the fence, except there was a drift not far from Establishment creek; that he did not remember whether the fence crossed the slough at the drift. On cross-examination, he said the property was more or less grown up with willows when they built the fence; that most of it was attached to posts in the ground; that some of the wire was attached to the willows; that some of the willows were barely large enough to support the wire; that the leaves were then on the willows; that he has no recollection of having cut any fence rows; that the fence was 4½ to 5 feet high above the ground; that they did not fence along the west side of the slough, along the Missouri shore; that the Frisco road was not there when they built the fence; that it took them as much as 12 days to build the fence; that he only remained there a few days after the fence was built; that he has not seen the property since March, 1902.

John C. Anton testified, in behalf of plaintiff, that in October, 1913, he resided at Clement, Mo., and was keeper of the Frisco Club; that defendant was in the occupation of that land in October, 1913. On cross-examination, he testified that he was keeper of said club from August, 1911, to May 1, 1914; that Mr. Branch was in possession of same in 1911; that he cleared the land for A. M. Branch, and saw where the old wire fence had been nailed to trees ; that some of the trees must have been 15 to 20 years old; that he cleared from the railroad track to the slough, from Establishment creek to about 500 feet north; that it was in the fall of 1913; that the above was not the first time the property had been cleared; that defendant was cultivating a cornfield in part of it in the fall of 1911.

Julius Hammerstein testified, for plaintiff, that he lived at the clubhouse from June to November, 1906; that he was in that vicinity about 2 years and was familiar with the property in controversy; that he was familiar with the fences on said land at that time; that they were located as follows: Beginning at a point on the north bank at the mouth of the present Establishment creek, running along said bank westwardly to a point about where the Staples branch empties into said creek, following the north bank of this Spring branch, to a point of about more or less within a hundred feet of the Frisco railway right of way, following northwestwardly the railway right of way to a point where the old Establishment creek turned eastwardly, then following the south bank eastwardly of the old Establishment creek, to a stream known as Mississippi slough. On cross-examination, witness testified that before 1900 the mouth of Establishment creek was changed; that in 1906 the fences were open in a few places, caused by drifts flowing in high water; that all the property included within the boundary of this fence was subject to overflow; that the property was not in cultivation during his time; that plaintiff was recognized as the rightful owner by him.

Wm. Burggraf testified, for plaintiff, that he lived near the property from January, 1906, to June of said year; that he was familiar with the property in controversy; that as near as he remembers there was a barb-wire fence from about 75 feet east of the railroad track to almost down to the mouth of Establishment creek; that it extended north as far as the big drift pile; that the above was as near as he could describe the fences; that plaintiff repaired said fences and said they were his. On cross-examination, witness testified that he did not know anything about Establishment creek changing its mouth; that Mrs. Clement's tenant was not cultivating the land while witness was there; that the fence was sometimes torn down in places; that the property was grown up with willows, and was not cultivated so far as he knew; that he never heard of Mr. Branch.

Joseph M. Carron testified, for plaintiff, that in 1902 and 1903 he was hauling railroad ties; that he got them on John F. La Rose's and Staples' or Clement's land; that he delivered them at the mouth of spring, where Frisco clubhouse now stands; that he saw fences of plaintiff on the land east of this east bank of the old mouth of Establishment creek.

Charles Basler testified, for plaintiff, that he was acquainted with the property in controversy in 1901, 1902, and 1903; that the fences were built by Charles Boyer, Bert Martin, and Henry Kennedy; that Charles Boyer lived on the Clement place; that the fences were built for plaintiff herein.

George Kissling testified, for plaintiff, that he had charge of the Frisco clubhouse in 1908, and remained there 4 years; that he knew the land in dispute; that the fences were there when he came, and remained there for 2 years or more after that; that Boas repaired them; that the fence ran north along the right of way of the Frisco railroad; that ...