Bratschi v. Loesch

• Decision Date: 10 June 1932
• Docket Number: No. 30055.,30055.
• Citation: 51 S.W.2d 69
• Parties: PETER BRATSCHI ET AL. v. ADAM LOESCH ET AL., Appellants.
• Court: Missouri Supreme Court

51 S.W.2d 69

PETER BRATSCHI ET AL. v. ADAM LOESCH ET AL., Appellants.

No. 30055.

Supreme Court of Missouri, Division 2.

June 10, 1932.^*

Appeal from Cole Circuit Court. — Hon. W.S. Stillwell, Judge.

AFFIRMED.

Irwin & Bushman for appellants.

(1) The court erred in trying the case without the intervention of a jury. (a) In a law case, no waiver of a jury being shown by any of the methods prescribed by Sec. 950, R.S. 1929, the case should be reversed and remanded. Briggs v. Ry. Co., 111 Mo. 175; Brown v. Ry. Co., 69 Mo. App. 420; Cox v. Slingsby, 53 Mo. 434. (b) The error being one of the record proper will be considered and remedied in this court whether exceptions were saved or not. Frowein v. Poage, 231 Mo. 91; Brown v. Hannibal & St. Joe Ry. Co., 37 Mo. 299. (2) The court erred in permitting plaintiffs to recover without title or of title. (a) In an action to quiet title plaintiff must recover, if at all, on the strength of his own title; and if plaintiff has no valid title, it is no concern of his whether or not defendant's claim is valid. Wheeler v. Reynolds Land Co., 193 Mo. 291; Saunders v. Johnson, 287 S.W. 427; Johnson v. Galloway, 254 S.W. 105; Hoffman v. Bingham, 24 S.W. (2d) 130. (3) The court erred in holding that by the description "to a white oak tree on the bank of the Moreau, thence down the stream to the range line" included the land to the thread of the stream at time of trial. (a) In construing a deed the intention of the parties is the thing to be sought. Armstrong v. Batterton, 260 S.W. 83; Myers v. St. L., 82 Mo. 367. (b) And the words "to," "from" or "by" are sufficient terms of exclusion, and unless by necessary implication they are manifestly used in a different sense, such words will operate to restrict the title of a deed or grant so as to exclude any watercourse which may be named as a boundary. 4 R.C.L. 87, sec. 18; Gould on Waters (3 Ed.) sec. 200; Hatch v. Burnell, 17 Mass. 299; Marine Ry. & Coal Co. v. United States, 257 U.S. 47, 42 Sup. Ct. Rep. 32; Kanouse v. Stockbower, 21 Atl. 200. (c) In construing a deed all the words of the deed within its four corners must be considered together and given effect, and words stating the estimated quantity or area are part of the description of the land and must be considered in fixing the identity of the tract conveyed; and in doubtful cases, where the boundaries are definitely fixed, it may be considered in arriving at a true construction of the instrument. 9 C.J. 195, sec. 81; Korneman v. Davis, 281 Mo. 243; Davis v. Hess, 103 Mo. 36; Cole v. Mueller, 187 Mo. 647; Whitwell v. Spiker, 238 Mo. 641. (4) The court erred in quieting title in plaintiffs as against defendants. (a) Because plaintiffs and their grantors had no title in themselves as shown under Point 3. (b) Or if plaintiffs or their grantors ever had title, defendants' title by adverse possession superseded it. And what constitutes adverse possession is a question compounded of law and fact, and every case in which it is involved must be determined by its own circumstances. What is adverse possession is one thing in a populous country, and another thing in a sparsely settled one, and still a different thing in a town or village. To constitute adverse possession there need not be a fence, building, or other improvements. Benne v. Miller, 149 Mo. 237; Leeper v. Baker, 68 Mo. 407; Powell v. Davis, 54 Mo. 19; Hickman v. Link, 97 Mo. 490. (c) A possession which is adverse and known to and acquiesced in by the true owner for a period of ten years will bar the true owner under the Statute of Limitations. In other words, possession which is adverse and also known to the true owner is equivalent to a possession which is adverse and also open and notorious. Dausch v. Crane, 109 Mo. 336; Key v. Jennings, 66 Mo. 367; Norton v. Kowazeck, 193 S.W. 556.

Ira H. Lohman and H.P. Lauf for respondents.

(1) It is certainly up to appellant to bring up the record they complain of and not having brought up the record they are in no position to ask this court to convict the trial court of error on a record not before this court. Furthermore, nothing is in the record to show that this point is before the court for review on the motion for new trial. It is not mentioned in the motion for new trial nor was there any motion in arrest filed to bring a point of that character before this court. Great stress is laid upon the case of Frowein v. Poage, 231 Mo. 91. This case was decided before the year 1909 and before the amendment to Sec. 650, R.S. 1899, and therefore is no longer applicable in view of the amendment to the statute. The facts in that case also show no equitable issues raised, and also show that the appellants demanded a jury trial. In the case at bar an equitable issue is raised and it is now clearly settled that where equitable issue is raised no jury should be called. Hauser v. Murray, 256 Mo. 85; Kansas City v. Woerishoeffer, 249 Mo. 24; Hecker v. Bleish, 37 S.W. (2d) 447; Bruner v. Marcum, 50 Mo. 405; Hagemann v. Pinska, 37 S.W. (2d) 467; Hecker v. Bleish, 37 S.W. (2d) 447. This of itself is a waiver in writing of the appellants for a jury within the provision of Sec. 950, R.S. 1929. The law is well settled in this State that unless a jury trial be demanded it is waived. Pike v. Martindale, 91 Mo. 268; Chicago, etc., Railroad Co. v. Randolph Townsite Co., 103 Mo. 451; Nishnabotna Drainage District v. Campbell, 154 Mo. 151; Hecker v. Bleish, 37 S.W. (2d) 447. (2) The court properly held that the dividing line between the two estates is the thread of the stream. The law is well settled that the thread of the stream is the line midway between the opposite shore lines, when the water is in its natural and ordinary stage, at medium height, neither swollen by freshets nor shrunk by droughts. 9 C.J. 187, par. 65, and long line of cases cited; Whiteside v. Oasis Club (Mo.), 187 S.W. 30; Gould on Waters (3 Ed.) secs. 194, 196, 197, 198; 9 C.J. 198, par. 69, and long list of authorities cited; Gould on Water Courses (3 Ed.) sec. 76; Thunderlake Lumber Co. v. Carpenter, 184 Wis. 580; Cramer v. Perini, 188 N.Y. Supp. 148. Where the dividing line is the center of the creek the thread of the stream is the boundary. "The thread of the stream is the line midway between the opposite shore lines, when the water is in its natural and ordinary stage, at medium height, and neither swollen by freshets nor shrunk by droughts." 9 C.J. 193, sec. 76; Gould on Waters (3 Ed.) sec. 198; Niehaus v. Shepard, 26 Ohio St. 40, 45; Primm v. Walker, 38 Mo. 99; Spurrier v. Hodges, 26 Ky. Law 805; Angell on Water Courses (3 Ed.) 159; Gould on Water Courses (3 Ed.) 159; Philadelphia Co. v. Stimson, 223 U.S. 624; Stockley v. Cissna, 119 Fed. 822; Nebraska v. Iowa, 143 U.S. 359; Jeffries v. East Omaha Land Company, 134 U.S. 178, affirming East Omaha Land Co. v. Jeffries, reported in 40 Fed. 386; Murly v. Norton, 100 N.Y. 424; Leonard v. Wood, 33 Ind. App. 83. (3) The above principle has been unconditionally and absolutely settled by the Supreme Court of the State of Missouri in which many of the authorities we have cited, particularly Gould on Waters (3 Ed.) section 159, in the following cases recently decided: State ex rel. ex inf. Mansur v. Hoffman, 2 S.W. (2d) 583; Akers v. Stoner, 7 S.W. (2d) 695; Jacobs v. Stoner, 7 S.W. (2d) 703.

COOLEY, C.

Action to determine title to real estate, brought in the Circuit Court of Cole County under present Section 1520, Revised Statutes 1929, 2 Mo. Stat. Ann., p. 1683, Section 1970, Revised Statutes 1919, old Section 650, Revised Statutes 1899, Section 2535, Revised Statutes 1909. The trial, which was to the court without a jury, resulted in a judgment for plaintiffs adjudging and quieting title in them and that defendants have no title or interest. Defendants appealed.

The land in dispute is a narrow strip, called by most of the witnesses a gravel bar, lying between the thread or center of the stream of Moreau Creek and a line on the right bank of said creek which defendants claim is plaintiffs' boundary. Defendants own lands opposite said strip on the left side of the Moreau. By their answer they denied plaintiffs' title to the disputed strip and claimed it themselves by adverse possession. Plaintiffs claimed to have record title and also title by adverse possession and were in possession when suit was brought.

Moreau Creek is admittedly a non-navigable stream. At the place in question it runs in a northeasterly direction, plaintiffs' lands being on the right or southeast side thereof and defendants' on the left or northwest side. For convenience we may call the right side east and the left side west.

Plaintiffs claim record title as the devisees of their father, Peter Bratschi, to whom W.A. Kuhlman conveyed, February 24, 1913, by the following description: "... about 35 acres, being the southeast part of Section One, Township Forty-three, Range Thirteen, and more particularly described as beginning at the southeast corner of said Section One, thence running in a northwesterly direction to a white oak tree on the bank of the Moreau Creek, thence down said creek to the east boundary line of said Section One, then south to the place of beginning." It was admitted that the same land had been conveyed to Kuhlman and to his grantors by the same description "from the time title emanated from the Government." Defendants' deeds and those in the chain of title to their lands (on the left side of the Moreau) called for the "Center line of the Moreau Creek" as their southeastern boundary. The dispute as to plaintiffs' record title to the strip in controversy hinges, largely at least, upon the effect of the call in their conveyances to the white oak tree on the bank of the Moreau, defendants contending that by that call plaintiffs' northwestern boundary is fixed at a line running from the tree along and upon the right bank of the creek while plaintiffs claim their deeds make the stream...