Cordell v. Sanders

• Decision Date: 03 September 1932
• Parties: Etta Cordell v. John P. Sanders, Appellant
• Court: Missouri Supreme Court

52 S.W.2d 834

331 Mo. 84

Etta Cordell v. John P. Sanders, Appellant

Supreme Court of Missouri

September 3, 1932

Appeal from Barry Circuit Court; Hon. J. T. Burgess, Judge.

Reversed and remanded.

C M. Landis for appellant.

(1) Under the undisputed evidence in this case Section 3 is an exterior fractional section, and borders on the north line of the township and that the quarter section corner, that the surveyors were attempting to locate, was entirely obliterated, lost and destroyed, no trace of it could be found. Under this state of facts, in locating such lost quarter corners, the surveyors should have followed the rule laid down by this court in the case of Knight v Elliott, 57 Mo. 324; Vaughn v. Tate, 64 Mo 491; Lemmon v. Hartsook, 80 Mo. 19; Dolphin v. Klann, 246 Mo. 488; Lester's Land Laws and Regulations, p. 722; Manual of Surveying Instructions, p. 26; Keeling v. Fruit, 30 Ind. 306. (2) The surveys of Henbest and Harvey were illegal and should not have been permitted in evidence, and clearly not that of Harvey, as according to his testimony and that of O. P. Brite, both witnesses for plaintiff. They began their pretended survey from an assumed corner, without any effort to determine location of same as provided by law. Lumber Co. v. County, 270 Mo. 136; Clark v. McAtee, 227 Mo. 152. (3) As defendant and those under whom he claims have had, prior to the date of the bringing of this suit, the adverse possession of this land under a claim and color of title and paid the taxes thereon for a period of more than thirty years prior to that date. The title to said land had vested in defendant, and plaintiff was barred at the date of her suit under the ten, twenty-four and thirty year statutes of limitations of this State. Collins v. Pease, 146 Mo. 135; Franklin v. Cunningham, 187 Mo. 196; Kirton v. Bull, 168 Mo. 633; Scannell v. Fountain, 161 Mo. 616. (4) Henbest testifies that he started his survey from where he found a rock in the road fifteen feet south and west of the corner of the fence, which he would not say was a section corner. Harvey says that he started his survey at the intersection of the two fences. He assumed this to be the southwest corner of the section. One of these surveyors was wrong. Such exhibitions of carelessness, like this, when the action is to take from one citizen property and give it to another, proves the wisdom of this court in its holdings in the cases of Lumber Co. v. Ripley County, 270 Mo. 136; Clark v. McAtee, 227 Mo. 152.

Jas. E. Sater for respondent.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a suit in ejectment for the following described land in Barry County, Missouri, to-wit: "Commencing at the Southwest corner of the Southwest Quarter of the Northwest Quarter of Section 3, in Township 22, Range 25; thence North 67.8 feet to a fence; thence following the fence East one quarter mile; thence South 67.8 feet; thence West one quarter of mile to point of beginning, containing two acres more or less." Plaintiff has record title to the south half of the northwest quarter of Section 3 and defendant record title to the southwest quarter of Section 3. There is no question of adverse possession because both parties declare they claim only to the true line. The only question, therefore, is the determination of the true line between the quarter sections. Defendant claims that the west quarter mile of his north fence is on the true boundary line. The east quarter mile of his fence is set back south to leave a road and a spring. There is no controversy about it here.

Section 3, being an exterior section on the north line of the township, is fractional. The quarter section corner, which is the northwest corner of the southwest quarter and the southwest corner of the northwest quarter, is lost. It appears from the evidence that the line between these two quarter sections has for a long time been in dispute. Plaintiff attempted to establish this quarter section corner by the evidence of two surveyors. One of them made a survey in 1902 and the other in 1929. These surveyors did not arrive at exactly the same point but within less than two feet of each other. There was formerly a rail fence about ten steps north of the quarter section corner located by the surveyors and defendant had been in possession to this rail fence. Plaintiff's grantor, after the first survey in 1902, built a fence on the line of that survey about twenty-six feet south of the old rail fence. Defendant brought a suit in ejectment, obtained a judgment, and was put back in possession and removed this fence. The proceedings in this former ejectment suit were not pleaded or put in evidence in this case. Thereafter, defendant built a new fence something like fifteen steps still farther north than the location of the old rail fence. That brought about the present law suit. Defendant claims the true boundary line is forty chains north of the southwest corner of Section 3, and that his new fence is on that line. Plaintiff claims this new fence is seven and one-half feet farther north than forty chains from the southwest corner of Section 3 and also claims that the true boundary line between the quarter sections is 67.8 feet south of the defendant's new fence.

The government survey subdividing Section 3 was not introduced in evidence. One of plaintiff's witnesses, who formerly owned land in the northwest quarter, testified that the north forty contained 38.09 acres, but the source of his information was not shown. One of plaintiff's surveyors was a State Highway surveyor who made the survey of 1929. He made a plat of his survey but it was not introduced in evidence. He testified that the government survey was wrong and that "where it equals forty chains by government measure is thirty-nine chains and ten links by my chain. On the other side by government measure it is thirty-nine chains and ninety links, (this is also stated thirty-eight chains and ninety links) and by my tape line I make it thirty-eight chains and three links." He testified that he determined the southwest corner of Section 3, from which he commenced his survey, as follows:

"Q. I understand that you never established any section corner down there. A. It was not lost and was not necessary to establish it. Q. You never found it? A. I found the exact point where the corner should be and was from reference points. Q. Where did you start your survey? A. At the intersection of the two fences that are known to be on the section line, and also the intersection of the two roads that my notes in the office show were located on the section line by Pleas Stubblefield in 1894. Q. You never found that corner stone? A. I located that corner at the intersection of the two fence lines that are known to be on the section line, and the two roads known to be on the section line. Q. You just assumed that they were? A. It was not necessary to survey, and there is no better way to get about it to establish a corner than the way I did. There is no other way to get the corner than the theoretical way I did. Q. But you never made any survey to determine that. You determined that by looking at the ground? A. That was all that was necessary."

He established the quarter section corner from which he ran the line between the northwest quarter and the southwest quarter 39 chains and 10 links north of the southwest corner of Section 3. He said:

"I gave each section of land the measurement shown on the plats of the United States government -- which was by proportionate measurement -- I gave the half mile on the south side the forty acres government measure which was a little different from my chaining, and the north half mile thirty-eight chains and thirty-eight chains and ninety links, which is figured by government, which showed that their chain would equal ninety-seven point seven five six links as against my chain which would equal one hundred links, and at the point figured by proportionate measurement I drove an iron pin and measured into a number of trees for reference and recorded the survey. . . . Q. In other words, each half mile bears its percentage of the loss, rather than one-half mile taking all the loss? A. Yes, sir, it does."

His chain man testified concerning the determination of the southwest corner from which the last survey started as follows:

"Q. Did you find any evidence of a corner being there? A. We didn't find no corner but we found the fences. We had two fences and two roads to get the points of beginning. Q. You just assumed there was a corner there because those two fences there and two corners. A. There was two roads that seemed to have been there quite a while. Q. There was no evidence of that corner outside of these fences and roads? A. We didn't find no rock. Q. Did you look for one? A. Yes, sir. The road had been cleared around in a curve. . . . Q. You never measured that to any other corner to establish this corner did you? A. No."

Plaintiff's other surveyor, a former county surveyor, had made the survey of 1902. He said he made a record of his survey but he had lost the book and testified from recollection. He said that the west side of Section 3 measured about 175 links short of what the government field notes gave it. He said "we didn't find the section corner, however, on the west side of the section." Concerning the corner from which he started he testified as follows:

"Q. You don't know whether you started from the corner or not? A. I started from the recognized corner. It was fifteen feet west of what is now Kimball's fence, and it was in the center of the road west from there and south from there. Q. You didn't try to establish the fact that was a corner by any further surveying? A. I run that line. I started from the...