Climer v. Wallace

• Decision Date: 31 July 1859
• Citation: 28 Mo. 556
• Parties: CLIMER et al., Respondents, v. WALLACE, Appellant.
• Court: Missouri Supreme Court

28 Mo. 556

CLIMER et al., Respondents,

v.WALLACE, Appellant.

Supreme Court of Missouri.

July Term, 1859.

1. A worm fence is a part of the freehold and passes along with the land upon which it is built.

2. Where two adjoining proprietors agree to put up a partition fence between them, each to own that portion of the fence put up by himself, and the fence built by one is mistakenly located upon the land of the other, and the latter sells his tract to a person who has no notice of the agreement as to the ownership of the fence, such purchaser will take the fence so located upon his land.

3. The corners established by the United States surveyors in surveying the public lands are conclusive as to the actual location of the boundary lines of sections and such subdivisions thereof as are authorized by the laws of the United States; it cannot be shown that the United States surveyors mistakenly located such corners.

Appeal from Maries Circuit Court.

The facts in evidence sufficiently appear in the opinion of the court. The court gave the following instructions at the instance of the plaintiffs: “1. In ascertaining the boundaries of United States lands according to the government surveys, the boundary lines actually run and marked by the public surveyors are to be taken as the true boundaries, although such marked boundaries may not correspond with the courses and distances. Courses and distances must yield to an ascertained corner or boundary, and although such corners or boundaries may have been effaced or destroyed, yet if the locality can be ascertained by ______ testimony, it will prevail. 2. Boundaries may be proved by a witness who is acquainted with the lines and corners run and established by the surveyor, although he never saw the land surveyed; but if the jury find that witnesses were not familiar with lines and corners of government surveys, their evidence will be disregarded. 9. If the jury believe from the evidence that at the time of the purchase by plaintiffs, or either of them, of the south-east quarter of the north-east quarter of section thirty, township forty, of range seven west, he had no notice of the partition fence between said land and that of defendant, and was not apprised of the circumstances under which said fence was put up, and further believe that defendant wrongfully and without leave removed from the land of the plaintiff the rails claimed in his statement of facts, or any less number, they will find for plaintiffs the value of said rails so removed by defendant.”

The court gave the following instructions asked by defendant: “1. Unless the jury believe from the evidence that the defendant took the rails sued for off the land of the plaintiffs, the jury will find for the defendant. 2. Although the jury may believe the defendant took the rails sued for off of the plaintiffs' land, yet if they further believe from the evidence that, before plaintiffs purchased said land and while it belonged to Pinnell, he and defendant made the fence in controversy, with the understanding that so much of the fence made by each should be the property of each one as made by himself; and further, that, before the payment of the purchase money and the reception of the deed by the plaintiffs from Pinnell, he informed plaintiffs or either of them of defendant's right to said rails, the jury will find for the defendant.”

The court, of its own motion, gave the following instruction: “The lands of the plaintiffs and defendant being divided by descriptions as given in the deed of the plaintiffs from Pinnell, the boundary line actually run and marked by the public surveyor is to be taken and considered as the true boundary or dividing line between the parties, and the witnesses in this cause were permitted to speak of their surveys and examinations only for the purpose of explaining the means resorted to for the purpose of discovering...