Cullen v. Atchison County

• Decision Date: 31 December 1924
• Docket Number: 24260
• Citation: 268 S.W. 93
• Parties: CULLEN et al. v. ATCHISON COUNTY et al
• Court: Missouri Supreme Court

268 S.W. 93

CULLEN et al. v. ATCHISON COUNTY et al

No. 24260

Supreme Court of Missouri, Second Division

December 31, 1924

L. D Ramsay, of Rockport, for appellant.

John C Landis, Jr., and R. M. Duncan, both of St. Joseph, and Frank Petree, of Oregon, Mo., for respondents.

OPINION

RAILEY, C.

Plaintiffs filed in the circuit court of Atchison county, Mo., on July 19, 1920, a petition to quiet title to certain real estate described therein, located in Atchison county aforesaid. The defendant Atchison county and other parties were joined as defendants, but the county aforesaid is the only defendant who appealed to this court. On the application of plaintiffs, the venue was changed and the cause tried in Holt county, Mo., on an amended petition, which alleged, among other things, that plaintiffs were the owners in fee of certain lands in Atchison county aforesaid, which are described therein. It is averred that defendants and each of them claim to have an interest in said land; that each and all of said defendants wrongfully claim to be the owners in fee of said land. The court was requested to ascertain and determine the estate, title, and interest of the plaintiffs and the several defendants in said real estate, and to adjudge said plaintiffs to be the owners in fee thereof.

The separate answer of Atchison county denies that it is in possession of, or makes any claim to, any part of the land described in plaintiffs' petition that lies south of the north line of section 21, township 65, range 42, and disclaimed any interest therein. It is averred in said answer, that Atchison county is the owner and in the possession of all the balance of said lands described in plaintiffs' petition; that it has held title by adverse possession for more than ten years before the commencement of this suit, claiming the same as river bed lands, islands therein, and accretions to said lands conveyed to it by an Act of the General Assembly of Missouri, approved April 8, 1895, Laws 1895, p. 207, and amendment thereof approved June 3, 1899, Session Acts 1899, p. 276. The answer of appellant further avers that plaintiffs should not be permitted to maintain this action, for the alleged reason that there is a misjoinder of causes of actions, with eight named defendants, and no allegation showing that their defenses are the same, or that they hold said lands jointly or by common claim or right. Said defendant alleges that plaintiffs are not the owners of said lands in fee or otherwise, or any part thereof; that they are informed the plaintiffs procured said lands by quitclaim deed from supposed riparian owners of lands bordering on those in question, and that by reason thereof they will claim the lands sued for as accretions thereto; that it denies said lands described in petition are accretions to any bordering riparian lands on the Missouri side of the Missouri river but, on the contrary, assert that they are abandoned river bed lands, and islands therein; that should any accretions appear to said land, they are those belonging to the said islands, and not to the shore lands of plaintiffs, or those under whom they claim. Said defendant further alleges that it owns all of said lands described in plaintiffs' petition, except those disclaimed as above; that the claims of said plaintiffs are antagonistic to those of said defendant. In conclusion the court was asked to ascertain and determine the estate, titles, etc., of plaintiffs and said defendant in said real estate, and to decree the title thereto in it, etc.

The plaintiffs in their reply deny the allegations of the separate answer of Atchison county. They especially deny that said county is the owner or in possession of any of the lands described in their petition. They deny that said lands, or any part of same, were or are river bed lands, or islands in the Missouri river, or accretions to said islands, but aver the facts to be, that said lands were and are accretions to the lands owned by plaintiffs or their grantors.

The plaintiffs at the trial of the case introduced substantial evidence tending to sustain the allegations of their petition. The defendant Atchison county likewise offered substantial evidence tending to support the allegations of title to said lands pleaded in its answer. The case was tried before a jury, and the latter returned into court the following verdict:

'We, the jury, find that the plaintiffs are the owners of and entitled to the possession of the following described premises in Atchison county, Mo., to wit:

'Beginning at the point where a north and south line 10 rods east of and parallel to the center line of section 9, township 65, range 42, intersects the high bank line of the Missouri river; thence southeasterly along said high bank line to the west line of section 10, township 65, range 42, thence south along said west line of said sections 10 and 15, township 65, range 42, to the quarter section corner on the west line of said section 15; thence east to the high bank line of the Missouri river; thence southwesterly along said high bank line to the east and west center line of the southwest quarter of the southwest quarter of said section 15; thence westerly to a point in the center of the state line slough, 782 feet north of the south line of section 16, township 65, range 42, measured up the center line of said slough; thence northerly on said center line of said state line slough to a point from which the beginning point bears north 61 degrees east; thence to the point of beginning. And that the defendants have no right, title, or interest in or to the said land or any part thereof. Chas. C. Laurence, Foreman.'

The trial court entered judgment in due form in conformity to the verdict of the jury. Motions for a new trial and in arrest of judgment were filed and overruled. The defendant, Atchison county, alone perfected its appeal to this court.

Opinion.

I. No assignments of error appear in appellant's brief, but we will consider the points and authorities in lieu of same. It is insisted that the trial court erred in refusing to sustain appellant's demurrer to the evidence at the conclusion of plaintiffs' case in brief.

The above demurrer was overruled, and defendants put in their testimony on the merits of the case. In so doing, they waived their right to be heard here on said demurrer, as the jury were then bound to consider the case with reference to all the evidence offered on both sides. The ruling, in respect to above matter, is no longer a debatable question, as shown by numerous decisions of this court, some of which are as follows: Kaemmerer v. Wells, 299 Mo. 249, 252 S.W. loc. cit. 732; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. loc. cit. 678; State v. Bigley (Mo. Sup.) 247 S.W. loc. cit. 171; State v. Clinkingbeard (Mo. Sup.) 247 S.W. loc. cit. 201; State v. Bray (Mo. Sup.) 246 S.W. loc. cit. 922; State v. Hembree, 295 Mo. 1, 242 S.W. loc. cit. 913, 914; State v. Barker, 294 Mo. 303, 242 S.W. loc. cit. 409; State v. Wilson (Mo. Sup.) 237 S.W. loc. cit. 778; State v. Wells et al. (Mo. Sup.) 234 S.W. loc. cit. 827; Burton v. Holman, 288 Mo. loc. cit. 78, and cases cited, 231 S.W. loc. cit. 632; State v. Ray (Mo. Sup.) 225 S.W. loc. cit. 973; State v. Jackson, 283 Mo. loc. cit. 24, and cases cited, 222 S.W. loc. cit. 748; State v. Lippman (Mo. Sup.) 222 S.W. loc. cit. 439; State v. Belknap (Mo. Sup.) 221 S.W. loc. cit. 45; State v. Mann (Mo. Sup.) 217 S.W. loc. cit. 69; Lareau v. Lareau (Mo. Sup.) 208 S.W. loc. cit. 243, and cases cited.

II. Appellant likewise contends that its demurrer to the evidence at the conclusion of the whole case should have been sustained.

We do not deem it necessary to go through the record in this case and set out the testimony. After reading the evidence, we have no hesitation in saying that the demurrer thereto was properly overruled. There was abundant, substantial evidence offered at the trial, which justified the verdict of the jury returned in this case. Substantially the same issues as are presented here on the merits were passed on by at least two juries and two judges of the circuit court. One of these cases, entitled Griswold v. Hall (Mo. Sup.) 191 S.W. loc. cit. 1011, and following, was appealed to this court, and the judgment in favor of defendant, Hall, affirmed. It was the province of the jury to pass upon the weight of the testimony, and we do not feel justified, on the record before us, in disturbing the same upon a demurrer to the evidence. The above assignment is accordingly overruled.

III. This is purely an action at law, in which no equitable rights intervene, as shown from the foregoing analysis of the pleadings. The plaintiffs claim to be the absolute owners of the land sued for, and the judgment below, based upon the verdict of the jury, was rendered in their favor. On the other hand, the defendant, Atchison county, claims to be the owner of said real estate, except that portion as to which it entered a disclaimer. Assuming for the present that the plaintiffs have the legal capacity to maintain this action which we will consider later, the verdict of the jury in this legal proceeding is conclusive on appeal, unless reversible error was committed during the progress of the trial below. Miller v. Corpman (Mo. Sup.) 257 S.W. loc. cit. 429; Zeitinger v. Hargadine-McKittrick Dry Goods Co. (Mo. Sup.) 250 S.W. loc. cit. 917; Barr v. Stone (Mo. Sup.) 242 S.W. loc. cit. 663; Kline Cloak & Coat Co. v. Morris, 293 Mo. 478, 240 S.W. loc. cit. 100; Nevins v. Gilliland, 290 Mo. loc. cit. 299, 300, 234 S.W. loc. cit. 819; Bingham v. Edmonds (Mo. Sup.) 210 S.W. 885; Cowan v. Young, 282 Mo. loc. cit. 45, 220 S.W. loc. cit. 872; Christine v. Luyties, 280 Mo. loc. cit. 426, 217 S.W. 55; Case v. Sipes, 280 Mo....