Cordry v. Quint

• Citation: 270 S.W. 977
• Decision Date: 19 March 1925
• Docket Number: No. 24684.,24684.
• Parties: CORDRY v. QUINT.
• Court: United States State Supreme Court of Missouri

270 S.W. 977

CORDRY v. QUINT.

No. 24684.

Supreme Court of Missouri. Division No. 2.

March 19, 1925.

Appeal from Circuit Court, Cooper County; H. J. Westhues, Judge.

Action by Thomas M. Cordry against John Quint. Judgment for defendant, and plaintiff appeals. Affirmed.

John Cosgrove and George D. Brownfield, both of Boonville, for appellant.

W. G. Pendleton and Roy D. Williams, both of Boonville, for respondent.

Statement.

RAILEY, C.

The case was tried on an amended petition in two counts. In the first count, plaintiff claims to be the owner of the south half of the northwest quarter of section 4, township 46, range 18, located in Cooper county; Mo., and asserts that he has been the owner of said land for more than 30 years; that the owners of said land caused the same to be surveyed by the surveyor of Cooper county aforesaid; that the line between said land and that on the west side of section 5 of said township was marked out by said surveyor and a hedge erected thereon, running north and south along the west side of plaintiff's land; that in 1871 or 1872 a hedge fence was planted on the west line of plaintiff's land, which has been trimmed, cultivated, and treated as the division between said land in sections 4 and 5; that plaintiff and those under whom he claims have been in the open possession of said south half of the northwest quarter of section 4 for more than 50 years; that during all that time the line where said hedge was planted was recognized by the owners on each side thereof as the true dividing line between said bodies of land: that plaintiff has been in possession of all that part of said northwest quarter of section 4, cultivating the same, using and treating the same as a part of his farm, holding and claiming possession thereof openly, continuously, adversely, and uninterruptedly for more than 10 years next before the committing of the trespass hereafter mentioned, and more than 10 years before the commencement of this suit; that for more than 10 years before the commencement of this suit it was agreed between the owners of the land now claimed by the defendant and plaintiff that said hedge fence was on the true dividing line; that plaintiff agreed with the owner of the land now claimed by defendant to keep, care for, and maintain said hedge fence as his portion of the partition and line fence between said bodies of land; that said fence has been recognized by all the subsequent owners of the land claimed by defendant as plaintiff's part of said division fence; and that plaintiff was the owner of said hedge fence, treated and cultivated the same as his portion of said fence. He further alleges in said count that defendant, in February, 1922, wrongfully, forcibly, and against plaintiff's will and protest entered upon plaintiff's said land, cut and destroyed said hedge fence, and made posts out of the trees from said hedge fence; that defendant cut out of said timber, posts to the number of 1,440, which were worth the sum of $500, for fence posts; that said hedge was totally destroyed as a fence; that by reason of defendant's wrongful acts plaintiff has been damaged in the sum of $750, for which he asks judgment. The second count alleges that on March 30, 1922, plaintiff was lawfully in possession of the following described premises: A strip of land about two feet in width, commencing at a point about two feet east of the south end of the hedge fence theretofore standing and growing on the west line of the southwest quarter of the northwest quarter of said section 4, township 46, range 18, in Cooper county aforesaid; that said fence, while standing, was about one-eighth of a mile in length, running from north to south; that defendant, after destroying said hedge fence, erected a fence consisting of posts and wire, running north about one-eighth of a mile from the south end of said hedge fence, and about parallel with the line occupied by said hedge fence before it was destroyed; that, plaintiff being so entitled to the possession of said premises, the defendant, on March 31, 1922, forcibly and wrongfully entered into possession of said premises and unlawfully withholds the possession thereof from plaintiff, to his damage in the sum of $150; that the monthly rent and value of said premises is $2 per month.. He prays judgment for possession, etc.

The answer to both counts of petition is a general denial.

As this is an action at law, in which this court is not called upon to pass on the weight of the evidence, we do not deem it necessary to set out any extended statement of the facts. Suffice it to say that plaintiff's evidence which was practically given without objection, if believed by the jury, was sufficient to establish the facts as stated in the petition.

A plat, referred to in evidence, is inserted in the front part of respondent's brief. It shows the location of the land and the hedge fence in controversy, as well as the names of the landowners in that vicinity. As a matter of convenience and information, we herewith make it a part of this opinion.

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

Without going into details, we are of the opinion, after carefully reading the evidence, that defendant produced substantial evidence at the trial tending to disprove the allegations in both counts of petition. He likewise produced substantial evidence tending to show that James Cordry, who formerly owned the land now owned by defendant in section 5, claimed the hedge in controversy, and told witnesses it was not on the division line. He said he always built his line fences on his own land; that when the survey was made in 1872, line stones were placed on the survey then made, to show where the true line ran. It appears from the evidence that these line stones remained there until after defendant bought his land, and that plaintiff pointed them out to him. Defendant testified that plaintiff said to him, "I will admit that hedge is on your land, but I claim the hedge."

Without proceeding further along this line, we are of the opinion that both plaintiff and defendant produced substantial testimony in support of their respective contentions, which were submitted to the jury, and a verdict returned in favor of defendant as to both counts. Plaintiff, in due time, filed his motion for a new trial, which was overruled, and he was granted an appeal to this court.

The instructions and rulings of the court, as far as necessary, will be considered in the opinion.

Opinion.

Plaintiff in his first assignment of error complains of the court's ruling in refusing his instruction G, which reads as folllows:

"The court instructs the jury that there is no evidence in this case that the hedge fence was not to be the dividing line between the land of the plaintiff and that now owned by the defendant at the time that said survey was made by County Surveyor Trent in about 1871 or 1872, or if said hedge fence was...