Cole v. Parker

• Decision Date: 31 October 1879
• Citation: 70 Mo. 372
• Parties: COLE, Appellant, v. PARKER.
• Court: Missouri Supreme Court

70 Mo. 372

COLE, Appellant,

v.PARKER.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Johnson Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

Walker & Field and Alexander & Chiles for appellant.

H. C. Wallace and Crittenden & Cockrell for respondent.

HENRY, J.

This was an action of ejectment in the common pleas court of Lafayette county, taken by change of venue to the circuit court of that county, and from that court by change of venue to the Johnson circuit court, in which a trial resulted in a judgment for defendant, from which plaintiff has appealed. The suit was to recover a strip of land off of the south end of the east half of the northwest quarter of section 11, township 48, range 25, 140 feet wide on the east, and 136 feet wide on the west side, and eighty rods in length. Plaintiff and defendant are coterminous proprietors, and the dispute is in relation to the boundary line between them. The evidence for plaintiff tends to show that the strip of land in question was north of defendant's true line, while the evidence for defendant tends to prove that it was within the true boundary lines of the southwest quarter of section 11, township 48, range 25, of which, it is not denied, he was the owner.

The defendant's answer was a general denial and a plea of the statute of limitations. The defendant had been in possession of the said quarter section and the strip in controversy since 1843. In 1854 the county court of Lafayette county established a county road which ran between the quarter sections owned by plaintiff and defendant, the south line of which road was the north line of the strip in controversy, and it was proved that for ten years before it was established as a county road it had been traveled and used as a neighborhood road; that after it became a county road, first defendant and then Lewis Jones, under whom plaintiff claims, were appointed and acted as overseers of said county road, the latter from 1856 to 1860 or 1861. The defendant planted a hedge fence along the south line of the road. George W. Davis entered the land now owned by plaintiff, and lived there while the road was traveled as a neighborhood road, and built his fence and house along the north line of the road. Parker, defendant, cultivated this land up to the south line of the road, and Davis and Jones cultivated their land to the north line of the road. In 1843 defendant took possession and inclosed the southwest quarter of section 11, township 48, range 25, except about 100 yards on the east side, with a paling fence, including the land in dispute, and in 1854 planted the hedge where the paling fence had stood. In 1843, Higgins, through whom defendant derives title, had De Sha Graves to survey his land, and that survey ascertained that the middle of what was afterwards the county road was the north line of the southwest quarter of section 11.

Thus matters stood; the co-terminous proprietors each regarding and treating the line established by Graves as the true line, and claiming to it until a survey was made by Bliss in 1871, which fixed the line between the two quarter sections south of the county road within three feet of defendant's house, and placing the strip in question in the northwest quarter of the section. Defendant testified: “I always considered the line in the road as the government line. I supposed I was fencing in my land according to the government line. I did not think I was fencing any body else's land. I claimed to the survey (as made by Graves). I intended to claim only to the government line, but claimed to the middle of the road, and believed that to be the government line, and still believe it.”

Lewis Jones, witness for plaintiff and through whom plaintiff claims title, testified that he went on the land now owned by plaintiff as his father's tenant in 1853, and purchased an interest of two-thirds in 1857; that during the time he lived on the land the line occupied by Parker's fence was acquiesced in as the line because he did not know where the line was; that there was no agreed line between him and Parker. John B. Jones testified for plaintiff that he took possession of the same tract in 1862, and used up to the fence on the north side of the road supposing it to be the correct line; knew no better until 1871; the fixing of the corner by Bliss was the first time he discovered the true line.

The following instructions were given for plaintiff: 1. If the court believe from the evidence that the corner to sections 34 and 35, on the township line between 48 and 49 and range 25, sought to be established in the proceeding instituted by John B. Jones, is the true government corner, and the survey made, based thereon, by Byron Bliss is a correct survey and establishes the true government line, and by said survey the land sued for by plaintiff is a part of the east half of the northwest quarter of section 11, township 48, range 25, then the court will find for the plaintiff, unless the court finds the plaintiff is barred by limitation or estopped from claiming said land.

5. If the court finds for the plaintiff he will assess to plaintiff such damages as plaintiff has proven he has sustained from the loss of the possession thereof from the beginning of this action, to-wit: February 27th, 1872; not to exceed, however, the sum of $200. And the court will further find the monthly value of the rents and profits of said premises not to exceed the sum of $10 per month.

The plaintiff asked the court for the following declarations of law, all of which were refused, and the third and seventh modified and given:

2. If the court believe from the evidence that by running a line from the known government corner at the southeast corner of section 22, township 48, range 25, and allowing eighty chains to the mile, and throwing all the surplus land along said line to the north half of the northern tier of sections, would throw the quarter section corner between section 10 and 11 far enough south of the road running through said sections as to include the land sued for by plaintiff in this cause, south of said road, as being a part of the east half of the northwest quarter of said section 11, then the court will find for plaintiff for so much of said land as he sues for in his petition, unless the court believes plaintiff is barred by limitation or estopped from claiming or recovering said land.

3. If the court believes from the evidence that the plaintiff and defendant are adjoining proprietors, and that the line between them was run by De Sha Graves, county surveyor of Lafayette county, which said plaintiff and defendant supposed to be the true line between their said lands, and each made improvements on his land with reference to said line as being the true government line, yet, if said line so run by said De Sha Graves is not the true government line between the land of plaintiff and defendant, and that said line was so recognized and improvement made by said parties through mistake and misapprehension that said line was the true government line, and that the true government line is south of the land in suit, which is a part of the land of plaintiff, then the court must find for plaintiff.

4. If the court finds from the evidence that the land in suit is a part of the east half of the northwest quarter of section 11, township, 43, range 25, as recognized and laid down by the surveys and instructions of the United States, then the court must find for the plaintiff.

6. If the court, sitting as a jury, believes from the evidence that the plaintiff, or those under whom he claims, through mistake or ignorance of the true line separating his land from that of defendant, permitted and suffered defendant to occupy the land in controversy, such occupation by defendant was not adverse to plaintiff, or those under whom he claims. There can be no estoppel where the parties acted under a mistake of facts.

7. If the court believes from the evidence that the land sued for is a part of the east half of the northwest quarter of section 11, township 48, range 25, and that it has been in...