Brummell v. Harris

• Decision Date: 14 May 1901
• Citation: 63 S.W. 497,162 Mo. 397
• Parties: BRUMMELL v. HARRIS et al.
• Court: Missouri Supreme Court

63 S.W. 497

162 Mo. 397

BRUMMELL v. HARRIS et al.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

BOUNDARIES — ADJOINING LANDOWNERS — UNKNOWN BOUNDARY — DETERMINATION BY OWNERS — DISREGARD OF DETERMINATION — INSTRUCTIONS.

1. The boundary line between defendant and plaintiff being unknown, the boundary was fixed by them and a fence built thereon; it being agreed that each should thereafter conform to the line so established. Subsequently, from time to time, when the fence was repaired, plaintiff ignored the established dividing line, and encroached on the land of plaintiff. Thereafter plaintiff brought ejectment, and the court instructed, at the instance of defendant, that the mere shifting of the fence from the line from time to time did not constitute an abandonment or release of the agreed line, but that the burden was on plaintiff to show that the defendants abandoned and released their claim to the old line; the first established being the true line of division. Held, that the instruction was more favorable than defendants were entitled to, inasmuch as the shifting of the fence was not the result of accident, but a deliberate encroachment, and hence an abandonment of the agreed line.

2. The court charged that, if the jury found that a certain survey established the correct line between the lands of plaintiff and defendant, before plaintiff could be devested of his title, and defendant hold same, under the statute of limitations or agreement, they must believe that plaintiff and defendant agreed upon a line as the true line, regardless of where the true line might be or might thereafter be determined, and that if the owners of the premises built a fence upon the agreed line, or that defendant more than 10 years prior to the suit took possession of the lands, claiming and intending the line to be the true line, against the world, without regard to where the true line might be, and that although defendant may have taken possession of a portion of plaintiff's land 20 or more years since, claiming the line upon which he so erected the fence to be the true boundary, yet, if he held the same subject to correction, then, no matter how long he thus held the land, he acquired no title beyond the true line. Held, that the instruction was not erroneous on the ground that it hopelessly confused defendant's defenses of limitations or agreement as to the line.

3. Where the true dividing line between adjacent landowners is unknown, and they agree on a fixed line as the true line, and thereafter the parties ignore it, in an action between them to determine the line the true line according to the survey will be enforced.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

Action by William Brummell against Warren Harris and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

O. G. Bain and O. G. Williams, for appellants. Harber & Knight and Hugh C. Smith, for respondent.

MARSHALL, J.

This is the second appeal of this case to this court. The decision on the former appeal is reported in 148 Mo. 430, 50 S. W. 93, and the former judgment in plaintiff's favor was then reversed because of errors in the instructions given for the plaintiff, and for vagueness in the judgment in regard to the land ordered restored by the judgment. Upon a trial anew in the circuit court the plaintiff again obtained judgment, and defendants have appealed a second time.

The action is in ejectment for a strip of land alleged in the petition to be 20 feet wide, and lying in the N. ½ of the N. W. ¼ of section 13, the W. ½ of the S. E. ¼ of section 12, and the N. W. ¼ of the N. E. ¼ of section 13, in township 61, range 24, in Grundy county. The petition is in the usual form. The amended answer, filed since the former decision in this case, is a general denial; a special plea of the establishment in 1863, by agreement between the then adjoining owners, of a dividing line between the land of the plaintiff's grantors and the defendants' land, followed by a continuous occupancy according to the line so established by the respective owners ever since; a plea of the 10-years statute of limitation; and a disclaimer of possession or right of possession of or to any land lying west of the established line. The reply is a general denial. The following plat, made by Brown, the former county surveyor, gives a clear understanding of the land in dispute:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The section line is shown by the heavy straight line. The line alleged to have been established in 1863 is shown by the waving line from the north end to the wagon road, and represents the location of the old worm fence. The waving line from the wagon road to the railroad represents a hedge which was planted west of the old line, and there is now a wire fence a few feet west of the hedge. The waiving line south of the railroad represents the old worm fence, and the broken straight lines represent the wire fence extending the whole distance from north to south.

The decision of this court on former appeal was the law of the case upon the trial anew in the circuit court, so far as the facts presented were the same. Hennessy v. Brewing Co., 145 Mo. 104, 46 S. W. 966; May v. Crawford, 150 Mo. 504, 51 S. W. 693; Bealey v. Smith (Mo. Sup.) 59 S. W., loc. cit. 985. The circuit court complied with this rule, and corrected the errors pointed out in the former trial. The defendants amended their answer so as to expressly disclaim as to the land lying west of the agreed line established in 1863. The evidence offered on the second trial showed that the Brown survey established the section lines, and that those lines were shown by corner stones, tally stakes, and blazed trees. The verdict of the jury described the land awarded to the plaintiff as lying between the wire fence and hedge on the west and the section or survey line on the east, and the judgment followed the verdict, so that the sheriff would have no difficulty in ascertaining the boundaries of the land to be restored to the plaintiff. There is no substantial conflict in the evidence that in 1863 the true dividing line was unknown to the then adjoining owners, and that in order to settle their respective rights they got together and agreed upon a dividing line, and staked it out, and built a worm or morticed fence on the line so established, and each agreed thereafter to conform to the line so established. But there is also no conflict in the evidence that they did not adhere strictly to that line, but from time to time thereafter when the hedge was planted and when the wire fence was constructed the defendants ignored the established dividing line, and encroached upon the land of the plaintiff and his grantor. It is this encroachment that the defendants seek to remedy by disclaiming any right or title thereto. The jury, however, did not stop with awarding possession of so much as had been so encroached upon and disclaimed, but went further and found for the plaintiff for all the land in the defendants' possession that lies west of the section line, which embraced not only the part so disclaimed, but also the part which lies between the established dividing line and the true or section line. This verdict may perhaps have been induced by two material facts that are disclosed by the testimony: First, that after the...