Chostner v. Schrock

• Decision Date: 11 June 1923
• Docket Number: No. 22849.,22849.
• Citation: 252 S.W. 381
• Parties: CHOSTNER et al. v. SCHROCK.
• Court: Missouri Supreme Court

252 S.W. 381

CHOSTNER et al. v. SCHROCK.

No. 22849.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, Bollinger County; Peter J. Huck, Judge.

Ejectment by P. B. Chostner and others against Henry Schrock. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

A. M. Spradling, of Cape Girardeau, and W. K. Chandler, of Marble Hill, for appellant.

Emil E. Brill, Jr., and Chas. G. Revelle, both of St. Louis, for respondents.

WHITE, J.

Ejectment; petition in usual form, for a strip of land in Bollinger county. The answer is a general denial, a plea of the statute of limitations, and allegations that prior owners of the property agreed upon a line between the farms of the plaintiffs and the defendant, which Line corresponded with the boundary of their present possessions.

The plaintiffs' farm lay north of the defendant's farm, and the two were separated by a road running east and west. The plaintiffs claimed a strip of land south of the road and within the inclosure of the defendant. The defendant claimed the land occupied by him up to the road. The record title to certain quarter sections of land was admitted. The plaintiffs introduced a surveyor to show that the line of their land ran south of the road so as to include about four acres of the land in the possession of the defendant.

The defendant then introduced evidence to show that some 45 years before the trial the plaintiffs' father, and the then owner of the farm occupied by the defendant, agreed upon a line between the two farms, and located it by certain blazes on the trees. It seems a road was there which afterwards was established as a county road. The owner of the defendant's farm fenced and cultivated the land up to the road. A part of the land in dispute was not included within the inclosure for the separating line, and the "road extended beyond the fences.

The defendant had owned and had been in possession of his farm about 7 years before the suit was brought. He had claimed up to the road. He introduced evidence tending to show that the several owners prior to him, his grantors, had not only cultivated the land up to the road, but claimed it during all the period mentioned. Such claims at different intervals during the entire period of forty-odd years were shown. There was no dispute that the strip in controversy was cultivated and used like the rest of the defendant's farm during all that period.

The defendant's immediate grantor, who had possession for 5 or 6 years, appeared as a witness for the plaintiffs 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. As to the claim of the prior owners there seems to be little dispute but that they claimed to the road. On this evidence there was a judgment for the plaintiffs, and the defendant appealed.

I. The evidence offered by the defendant to show the agreement as to the line between the plaintiffs' father and the defendant's remote grantor, 45 years before, was practically uncontradicted; but that issue was submitted to the jury upon proper instruction, and the finding was for the plaintiffs. The jury had the right to determine the credibility of that evidence, and having determined that issue for the plaintiffs we are precluded from considering it further.

II. By instruction No. 2 the court told the jury that, before they could find for the defendant on the issue of adverse possession, they would have to find that the defendant and his predecessors for a period of 10 years prior to the institution of this suit openly and notoriously held possession of the land in dispute, "without regard to any line or marks which were supposed to be the line."

And by instruction No. 4 the jury were told that such possession must be under a claim of right, "without any regard for and independent of any mark, fence or road marking the supposed line."

The fifth instruction is as follows:

"5. The court instructs the jury that if you believe and find from the evidence that at some time before the survey made by the deputy county surveyor the lands belonging to plaintiffs and defendant were marked in any manner by blazes on the trees, by fences, or a public road which they thought to be the true line between their said farms, and for that reason only, the owners of the lands on either side of said supposed line used and claimed the land up to the marks, if any, fences, if any, and road, if any, and if you find that same were not on a true line, then neither of said land owners could acquire ownership between the true line and...