Brummell v. Harris

• Decision Date: 07 March 1899
• Parties: BRUMMELL v. HARRIS et al.
• Court: Missouri Supreme Court

50 S.W. 93

148 Mo. 430

BRUMMELL v. HARRIS et al.

Supreme Court of Missouri, Division No. 1.

March 7, 1899.

BOUNDARIES — ADVERSE POSSESSION — EJECTMENT — ADJOINING OWNERS — DIVISION LINE — AGREEMENT — PRESUMPTIONS — TRIAL — INSTRUCTIONS — EVIDENCE — VERDICT.

1. Where adjoining owners agree upon a division line, build a fence thereon, and occupy up to such fence for a time sufficient to show that they recognize the line as the boundary, the title of each to the land so occupied becomes vested, and is not affected by the subsequent decay or removal of the fence.

2. Where an adjoining owner occupies up to a certain line, claiming it to be the true line, his possession is adverse, and, if continued the requisite length of time, will give him title up to such line, independent of any agreement between prior owners with reference thereto.

3. In ejectment against an adjoining owner, he set up an agreement as to the division line between himself and a former owner of plaintiff's land, since deceased. The court instructed the jury to disregard all evidence, if any, given by defendant of any such agreement. Held not sufficiently precise to withdraw testimony given by defendants, as witnesses, as to the agreement, and, if there was no such testimony, the instruction was misleading.

4. In case of a dispute as to the division line between adjoining owners, the fact of a long-continued occupation to a certain line does not raise a presumption of an agreement that such line should be the true one, but is merely evidence thereof.

5. In case of a dispute as to the division line between adjoining owners, the fact that one of them made valuable improvements up to a certain line without objection of the other owner does not estop the latter to claim that such line is not the true one, but may be evidence of the establishment of such line as the true one, by agreement.

6. Where defendants in ejectment claimed title to all the land sued for, they cannot prevent plaintiff's recovery thereof at their costs on the ground that their evidence showed they had never before claimed title to the land.

7. A verdict for plaintiff in ejectment describing the land as a strip varying in width, situated between the fence now standing and a named survey, which was a survey of the division line between plaintiff's and adjoining land, being on the east side of a tract described by government numbers, is insufficient in its reference to the width and the survey.

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

Ejectment by William Brummell against Warren Harris and another. From a judgment entered on a verdict for plaintiff, defendants appeal. Reversed.

Ejectment for a strip of land 20 feet wide alleged to lie along the east side of the following described lands in Grundy county, which belong to plaintiff, to wit: W. ½ S. E. ¼ section 12, and N. W. ¼ N. E. ¼ section 13, township 61, range 21 W. Defendants own the lands adjoining the plaintiff's on the east, and this controversy arises out of a disputed boundary between them. The petition is in the usual form. The answer is first a general denial, then a plea of the statute of limitations, and third an agreement alleged to have been made in 1863 between defendants, then and now owning the land on the east, and one Samuel Luke, then owning the land on the west, which the plaintiff now owns; that by this agreement Luke and defendants, not knowing where the true line of division was, marked off and staked out a line, and agreed that it should be the division line between them; that in accordance with that agreement the parties to it built a division fence on that line, and each took possession and occupied on his side up to the fence; that in 1867 Luke sold his land in section 12 to one Baker, who had it surveyed, and found the division line to be as Luke and defendants had before agreed, and then Baker and defendants again agreed to that as the line between them, and built a fence on it; that from the time of the agreement with Luke, in 1863, to the present time, defendants have been in possession of the land east of that agreed line; and that Luke and those claiming under him, including the plaintiff, acquiesced in defendants' occupancy and claim for nearly 30 years. The reply was a general denial, except admitting the ownership by plaintiff and defendants of the tracts of land, respectively, of which the division line is in dispute. The plaintiff's evidence tended to prove that the true division line between the lands of the parties was from 14 to 20 feet east of the fence that now separates them; that this was shown by a survey made by County Surveyor Brown in 1891. Defendants' evidence tended to prove the affirmative defenses set up in their answer. The testimony also tended to show that, 8 or 10 years after the original fence (which was a rail fence) was built, defendants planted a hedge on that line in section 13, and, by permission of the then owner, in order to occupy the line of the old rail fence with this hedge they moved the fence a few feet west; that subsequently, from time to time, as it became necessary to replace the old with a new fence, the new portions were built at a distance of four or six feet west of the old, where the fence now stands, and only traces of the old rail fence remained when Brown made his survey in 1891. There was testimony tending to show that these changes were the result of circumstances making it more convenient to put the fence where it now is than on the old line, and that it was done without intention to indicate a new division line.

After the testimony was all in, the court gave the following instructions on behalf of the plaintiff, to which defendants excepted: "(1) The jury will disregard all evidence, if any, given by defendants of any agreement between themselves and Samuel D. Luke, or themselves and Wm. Holt, that the fences should be erected upon other than the true line, or that any other than the true line was agreed upon as such by them. (2) Under the pleadings, law, and evidence, the finding must be for the plaintiff for the strip of ground mentioned by the witness as being north of the branch, and between the center of the place formerly occupied and the present fence; and, in case the jury should find for the plaintiff for such portion of the premises only, the verdict may be in the following form: `We, the jury, find that at the time of the institution of this suit the defendants did, and now do, occupy a strip of land varying in width of from _____ feet to _____ feet (between the center of where the old rail fence formerly stood, and the present plank, post, and wire fence now is, north of the branch mentioned by the witness), off of the east side of the northwest of the southeast quarter and the east side of the southwest fourth of the southeast quarter of section 12, township 6, range 24, and being between the center of where the old rail fence formerly stood and the post, plank, and wire fence now is, and assess plaintiff's damages for the taking thereof at $_____, and the monthly rents and profits at $_____, Foreman.' (3) Although some of the persons through whom plaintiff claims to derive title to the premises in question prior to the purchase thereof by plaintiff agreed upon a line therefor, and actually took possession and occupied up to said agreed line, yet if defendants abandoned the same, and removed and changed their fences therefrom, they cannot now plead such former agreement and possession in bar of plaintiff's claim. (4) It is not enough, to devest the real owner of the land of the title thereto, that he and the adjoining owner, believing the line to be at a certain place, erect a fence and make improvements thereon, or in reference thereto, or even that such adjoining owners expressed to each other their opinion, and really believe, that a certain line is the true one; but in order to bar the owner of the real title from a recovery of it, no difference how long held, what improvements may have been made thereunder, by another, by reason of the statutes of limitations pleaded by defendants, it must appear to the reasonable satisfaction of the jury, and by the preponderance of the evidence, that said adjoining owners mutually agreed and understood that, regardless of where the true or real line might be, a certain specific line should be the true and real line, and, unless the defendants have so shown in this case, the verdict should be for the plaintiff for all the lands, if any defendants occupy of his; and if the jury should find that the survey as testified to by County Surveyor Brown is correct, and that defendants occupy certain portions of plaintiff's land, they can make their verdict in the following form: `We, the jury, find for the plaintiff, that at the time of the institution of this suit defendant did, and now does, occupy of the lands, i. e. a strip of from _____ feet to _____ feet on the east side of the west half of the southeast quarter of section 12, and the northwest fourth of the northeast quarter of section 13, all in township 61, range 24,___ said strip being between the fences now upon said premises and the survey made by said Brown; and we assess plaintiff's damages for the taking and detention thereof at $_____, and the monthly rents and profits at $_____. Foreman.'"

The court also gave the following instructions on behalf of defendants: "(3) If Samuel Luke and defendants agreed upon a line between their respective lands, and built their fences accordingly upon such agreed line, and the defendants have continuously occupied all the land east of said line, then said Luke and all persons holding under him, including this plaintiff, are bound by such agreed line; and in such case it would make no difference whether or not plaintiff, at the time he bought his land from Holt, knew of such agreement, but he would be bound to recognize that line." "(6) If Samuel Luke, while owner...