Clark v. McAtee

• Citation: 127 S.W. 37,227 Mo. 152
• Parties: CLARK v. McATEE et al
• Decision Date: 01 March 1910
• Court: United States State Supreme Court of Missouri

127 S.W. 37

227 Mo. 152

CLARK v. McATEE et al

Supreme Court of Missouri, Division No 1.

March 1, 1910.

1. BOUNDARIES (§ 54) — EVIDENCE — SURVEYS.

Under Rev. St. 1899, §§ 10,184, 10,186, 10,188 (Ann. St. 1906, pp. 4627, 4628), requiring the county surveyor to execute orders of the court for a survey or resurvey of any tract, and providing that no survey or resurvey except that of the county surveyor shall be considered legal evidence, etc., and that the county surveyor in surveying town lots shall give the distances to the points or lines from which he established the lines or lots, and perpetuate, the same by measuring the distances to houses standing in the immediate vicinity, or by prolonging the lines to the curbstones and cutting notches therein, a survey made by the county surveyor, under order of the court, cannot be admitted in evidence on the theory that it is an official record, unless it complies with the statute; and, where it complies with the statute, and is on its face regular and correct, it can only be impeached by showing that it is incorrect by evidence aliunde.

2. BOUNDARIES (§ 36) — EVIDENCE — SURVEYS.

A survey shown by all the witnesses to be incorrect is inadmissible.

3. BOUNDARIES (§ 36) — EVIDENCE — SURVEYS.

A survey, made by the county surveyor without giving the courses and distances to the points or lines from which he established the points and lines given in the survey, as required by Rev. St. 1899, § 10,188 (Ann. St. 1906, p. 4628), and without establishing a lost or destroyed corner, as provided by section 10,207 (page 4632), is inadmissible as an official record, especially in the absence of any credible evidence that the surveyor started from a legally constituted corner or line from which he made the survey.

4. BOUNDARIES (§ 41) — EVIDENCE — SURVEYS — INSTRUCTIONS.

A survey cannot be admitted on the theory that it is a private survey, and also on the theory that it is a survey of the county surveyor, and is a public record under the statute, and the court admitting a survey in evidence should by proper instruction inform the jury of the legal effect of an official survey, under Rev. St. 1899, c. 164, § 10,188 (Ann. St. 1906, p. 4628).

5. ADVERSE POSSESSION (§ 113) — EVIDENCE — ADMISSIBILITY.

The ordinary rule that legal title to real estate cannot be proved by parol does not prevent parol proof of title by adverse possession.

6. APPEAL AND ERROR (§ 173) — QUESTIONS REVIEWABLE — QUESTIONS NOT RAISED IN COURT BELOW.

Where the issue was confined to the location of a boundary line between the parties, and there was no question of ownership raised at the trial, the defeated party could not, for the first time on appeal, raise the point that the successful party did not show a legal paper title to the land in question.

7. TRIAL (§ 138) — EVIDENCE — QUESTION FOR JURY.

The court must determine the competency of the evidence offered, and evidence admitted must be weighed by the jury, and they cannot decide on its competency.

8. BOUNDARIES (§ 41) — ISSUES — INSTRUCTIONS.

In a suit involving the location of a boundary line, a charge directing the jury to find for plaintiff if they believed that a particular survey was correctly made, and a charge that the jury must determine, not how a correct survey would locate the tracts, but how the original survey located them, and that the particular survey was admitted only to assist in locating the original boundaries, were inconsistent, and the former charge was erroneous as requiring a verdict for plaintiff because the original survey was incorrect.

9. DEEDS (§ 112) — LOCATION OF BOUNDARIES — SURVEYS.

Where property owners in a city purchased their lots as established by the original survey and plat of the city, they purchased their lots according to such survey and plat, and they acquired no right to any ground not embraced

within the boundaries fixed by the survey, though it was incorrect.

Lamm, P. J., and Graves, J., dissenting.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by Rose Clark against Margaret McAtee and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial.

This is a suit in ejectment for the recovery of 8 feet of ground off of the entire south side of lot 4, and 10 feet off of the entire south side of lot 8, in block 4, in the original town, now city, of Edina, Knox county, Mo. A trial was had in the circuit court of Knox county, which resulted in a judgment for the plaintiff; and, after moving unsuccessfully for a new trial and in arrest of judgment, defendants duly appealed the cause to this court. The petition, in substance, stated that on July 7, 1904, and at all times thereafter, plaintiff was the owner of and entitled to the possession of said tracts of ground; that the defendants, afterwards, on said July 7, 1904, entered into the possession thereof, to the plaintiff's damage in the sum of $10. The petition alleges that the value of the monthly rents and profits of said lands is $1 per month, prays judgment for the possession of said premises, $10 damages for the unlawful withholding of same, and $1 for monthly rents and profits from the rendition of judgment. Defendants' answer denies that they were in possession of the premises described in the petition at the date of the commencement of the suit, denies that they withhold the possession of said premises, or any part thereof, from plaintiff, and make general denial of the allegations of the petition.

Plaintiff's Evidence.

Rose Clark, the plaintiff, without objection testified, in substance, that she was the owner of lots 4, 5, 8, 9, and 10 in block 4, in the original town of Edina, and had owned and been in possession of them for two years, and that Margaret McAtee, one of the defendants, owned the remaining lots contained in that block, namely, 1, 2, 3, 6, and 7. All of the lots are of uniform size, each having a frontage of 52 4/5 feet, with a depth of 129 feet and 1 inch. Plaintiff's lots constituted, speaking generally, the north half of the block, and defendants' the south half. Defendants wished to rebuild a partition fence between their lots and those of the plaintiff; and, in the discussion of that matter, a controversy arose as to the boundary line between them. The result was each party had the county surveyor of the county to survey their respective lots; but, there being some difference between those surveys, the court ordered the surveyor to make a third survey, known as "Survey No. 77," of which the following is a copy.

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

The latter survey differs from both of the former ones.

After the defendants had their survey made, according to plaintiff's testimony, they constructed a fence 8 feet and 4 inches north of the true dividing line between lots 3 and 4, and about 10 feet north of the true line between lots 7 and 8. Plaintiff then had her survey made, and undertook to build a fence on the line thereby established; but defendants interfered and prevented her from doing so. She then brought this suit. The original fence stood at the same place where defendants' new fence now stands.

Thomas Conway testified, on behalf of plaintiff, substantially, as follows: That he was county surveyor of Knox county. He made two surveys, establishing the dividing line between these two properties — one was made for plaintiff, and one for defendants. They did not correspond as to the dividing line, but he was unable to state what the difference between them was. The court ordered him to make another survey, a copy of which accompanies this statement. The difference that existed between the two first surveys affected the line running east and west between them, as did also survey No. 77. The plaintiff then introduced, over defendants' objection, survey No. 77, ordered made by the trial court. According to this survey defendants are in possession of those parts of plaintiff's lots described in the petition. According to this survey, if the dividing line between plaintiff's and defendants' lots should be extended, it would pass inside of defendants' east fence, at the southeast corner of lot 8, about 20 feet, and would pass through their house, and place a part thereof out in the street. There is some kind of a building on the southwest corner of lot 8, which belongs to defendants. It has been there five or six years. Continuing, Conway testified: "Q. Take the northwest corner of lot 8, also the northeast corner of lot 3, you established a point there? A. Yes, sir. Q. Now, where did they set with reference to the east fence running north and south between McAtee and Clark? A. I can't be positive about that. Q. There is a fence there? A. Yes, sir. Q. It makes a difference there? A. Yes, sir. Q. You have testified about the distance being eight feet farther south in reference to the fence there between lots 3 and 4? A. Yes, sir; at the west side it was eight feet. Q. You didn't notice how far it is west of his fence? A. I can't be positive about that. Q. What's your best recollection? A. If I remember right, that point was east of the fence. Q. Doesn't his fence run just east of his barn, Tom? A. I can't say. Q. There is no alley through that block? A. No, sir. Q. You have set one corner near McAtee's barn? A. Yes, sir. Q. Now doesn't that barn set in line with the alley to the south? A. I can't remember about the barn. I can't answer. Q. You did establish the east line of lot 3 between these parties? A. Yes, sir; I put one corner. Q. You didn't notice whether it changed the fence there now or not? A. I can't be positive about that. There is some difference, of course. Q. How much difference is there? A. I can't say, maybe 12 feet. I haven't made any accurate measurements of the fences. Q. Where did you locate the point at the southwest corner of lot 4? A. At the southwest corner of lot 4. Q. I mean with reference to...