Boas v. Cliffdale Land & Farm Co.

• Decision Date: 16 March 1917
• Docket Number: No. 18154.,18154.
• Citation: 193 S.W. 806
• Court: Missouri Supreme Court
• Parties: BOAS v. CLIFFDALE LAND & FARM CO.

193 S.W. 806

BOAS v. CLIFFDALE LAND & FARM CO.

No. 18154.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Proceeding in nature of a bill of review by John R. Boas against the Cliffdale Land & Farm Company. From a judgment sustaining a demurrer to the bill, the plaintiff appeals. Judgment affirmed.

This is a proceeding in the nature of a bill of review, seeking to set aside a decree rendered on April 8, 1912, in a cause entitled Cliffdale Land & Farm Company v. John R. Boas, and praying for a new trial of said cause. A demurrer to the bill was sustained, and the plaintiff has appealed.

For brevity and clearness we shall hereafter speak of the corporation defendant herein as the company. The following is a paraphrase of the petition in the first suit, omitting formal parts:

"The plaintiff is, and has been since December 16, 1908, the owner in fee and in the peaceable possession of lot 1, survey 2085, and south fractional half of section 19, fractional section 20, and the northwest fractional quarter section 29, township 39 north, range 8 east, situate in Ste. Genevieve County, Mo., all of said lands being bounded on the northeast by the Mississippi river. The defendant Boas, on October 30, 1910, without plaintiff's consent, entered on the northeastern part of said land and erected fences thereon, shutting out plaintiff's free access to the Mississippi river. Plaintiff prays for a mandatory injunction, commanding the defendant to remove forthwith all such fences and to refrain from interrupting in any way the free access by said company to said river."

The answer of Boas in that case contained a general denial, a plea of the statute of limitations, and alleged that Boas had been, since November 9, 1878, and was then still, the owner of Bruce Island in said river; that the land on which said fence was constructed and the land between said fence and said river is an accretion to said island so owned by said Boas, and that said Boas had been in the actual, open, exclusive, peaceable, adverse possession thereof for 32 years, claiming to own the same. There was a regular trial of the issues in that case, resulting in a decree in favor of the company, perpetually enjoining Boas from interrupting in any way the free access of the company from its said land to said river.

The petition or bill of review in this case sets out the foregoing facts as to the proceedings in the former case, alleges the discovery of new evidence since the former trial, and sets out such evidence, viz. letters constituting a correspondence between Boas and the agent of Mrs. Henry from whom the company acquired its said lands, said letters tending to prove title by adverse possession on the part of Boas to the land in controversy. The bill closes with a prayer that such judgment in the former suit be set aside, and that a new trial in that cause be granted. There is no allegation of fraud in such bill.

John R. Boas, of St. Louis, in pro. per. R. E. Rombauer and E. R. Rombauer, both of St. Louis, for respondent.

ROY, C. (after stating the facts as above).

I. This court has jurisdiction of this appeal. Under the pleadings in the injunction suit brought by the company against Boas the title to real estate was involved. The fact that the company chose to proceed by injunction rather than in ejectment does not alter the case in the least....