Chostner v. Schrock

• Decision Date: 19 October 1933
• Docket Number: 31297
• Citation: 64 S.W.2d 664
• Parties: CHOSTNER et al. v. SCHROCK
• Court: Missouri Supreme Court

64 S.W.2d 664

CHOSTNER et al. v. SCHROCK

No. 31297

Supreme Court of Missouri, First Division

October 19, 1933

Davis & Damron, of Fredericktown, and Dearmont, Spradling & Dalton of Cape Girardeau, for appellant.

OPINION

FRANK Presiding Judge.

Action in ejectment brought by respondents, plaintiffs below, to recover possession of a small strip of land in Bollinger county. Defendant's answer pleads (1) a general denial (2) adverse possession, and (3) an agreed line between the lands of the respective parties. Verdict and judgment below went in favor of plaintiffs, and defendant appealed.

This case was here on a former appeal, and is reported in 252 S.W 381.

The farms of the respective parties are separated by a road which runs east and west. Plaintiffs' farm lay north, and defendant's south, of this road. Plaintiffs claim a strip of land along the south side of the road and within the inclosure of defendant. Defendant claims the land occupied by him up to the road. Plaintiffs introduced two surveys, one made by the county surveyor, the other by the deputy county surveyor, for the purpose of showing that the line of their land ran south of the road so as to include the strip of land in controversy, consisting of about four acres. Plaintiff P. B. Chostner testified, without objection, that his deed called for the strip of land in question.

Plaintiff offered evidence to the effect that prior owners of the two farms talked about having a survey made so they would know where the line was; that defendant had made the statement that he had some of plaintiffs' land fenced, and intended to move the fence back as soon as he could get money to pay for the wire. Defendant denied making this statement.

Defendant offered evidence tending to show that some forty or fifty years before the trial the plaintiffs' father, then owner of the farm now owned by plaintiffs, agreed with the then owner of the other farm upon a line between the two farms, and located it by blazes on the trees; that a county road was established on this agreed line forty or fifty years ago, each party agreeing to give one-half of the road; that a part of the farm now owned and occupied by defendant was fenced at the time this road was established, and that fence was moved back twelve or fifteen feet in order to give one-half of the land for the road; that defendant and his predecessors in title for a period of some fifty years used, occupied, and cultivated the strip of land in controversy with the rest of the land within their inclosure, claiming title thereto at all of said times.

Defendant's immediate grantor, who owned and had possession of the land for five or six years, appeared as a witness for plaintiff, and was somewhat equivocal as to the extent of his claim. Whether he intended to claim up to the road, or only to the true line wherever it might be determined, was not very definite. There was practically no dispute that defendant's predecessors in title claimed to the road, which included the strip in question. There was no dispute that the strip in controversy was inclosed, used, and cultivated by defendant and his predecessors in title for a period of forty or fifty years. Plaintiff P. B. Chostner himself testified that he was forty-six years of age; that neither himself nor his father were ever in possession of the strip of land in controversy; that he lived on the farm north of the road all his life, except a short time he lived in Scott county; that this strip had been under fence since he could remember; that he never exercised any acts of ownership over it except to pay taxes; that he never cultivated any part of the strip.

It is somewhat difficult to under stand why a jury would find a verdict for plaintiff, unless it was induced to do so by instructions given on behalf of plaintiff, of which defendant complains. However, the conflict in the evidence and the credibility of the witness raised issues for the determination of the jury, and its verdict is conclusive on this court.

Complaint is made of plaintiffs' instruction No. 1. That instruction is short, and reads as follows: 'The court instructs the jury that if you believe and find from the evidence in this cause that the defendant herein and those under whom he holds, claim the strip of land in question by reason of the road running along the northern boundary of said land, and believing that said road was the line and that they only claim to the line, and you further find from the evidence that the survey of the deputy county surveyor shows the line to be other than the road north of said strip of land, then your finding should be for plaintiffs.'

The first complaint against this instruction is that it directs a verdict for plaintiff, regardless of the defenses of adverse possession and agreed line.

This instruction is wrong. The law governing the question was well stated by this court in the early case of Cole v Parker, 70 Mo. 372, 380, as follows: 'When co-terminous proprietors are in doubt or dispute, as to the true line between them, and mutually adopt one, temporarily, for convenience, until the true line shall have been ascertained, or where a party takes possession of his land, and desiring to inclose it, but in doubt as to where a line runs, builds his fence on the supposed line, only intending to hold the land to that line until the true line...