Cullen v. Johnson

• Decision Date: 03 June 1930
• Docket Number: No. 27983.,27983.
• Citation: 29 S.W.2d 39
• Parties: MAMIE CULLEN and KATE CULLEN v. ADAMANTINE JOHNSON, Appellant.
• Court: Missouri Supreme Court

29 S.W.2d 39

MAMIE CULLEN and KATE CULLEN v. ADAMANTINE JOHNSON, Appellant.

No. 27983.

Supreme Court of Missouri, Division One.

June 3, 1930.

Appeal from Andrew Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

W.E. Mitchell and Henry B. Hunt for appellant.

(1) The court erred in finding for the plaintiffs and against the defendant upon defendant's defense of laches as set forth in defendant's answer and heard before the court sitting as a chancellor. The defense of laches is peculiar to courts of equity and is not pleadable in actions at law. 21 C.J. 212, sec. 212. (a) Laches in a general sense is the neglect, for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. More specifically, it is inexcusable delay in asserting a right; an implied waiver arising from knowledge of existing conditions and an acquiescence in them; such neglect to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity; and delay in enforcing one's rights as works disadvantage to another. (b) While there are elements in common, laches is to be distinguished from technical estoppel, and from statutory limitations. 21 C.J. 210, sec. 211; Troll v. St. Louis, 257 Mo. 660; Wendell v. Orchard Co., 200 S.W. 749. (c) If, in the course of an inexcusable delay in the assertion of a right, changes occur in the subject-matter of the transaction in suit or in the relative positions of the parties thereto, as a result of which it is impossible to place the parties in statu quo, and the enforcement of the right would work inequity, relief will be denied because of laches, 21 C.J. 231, 232, sec. 225; Carson v. Lumber Co., 270 Mo. 238; Shelton v. Horrell, 232 Mo. 371; Reel v. Ewing, 71 Mo. 17. (d) A party is guilty of laches which ordinarily bars the enforcement of his right where he remains passive while an adverse claimant incurs risk, enters into obligations, or makes expenditures in improving the property in suit, paying taxes thereon, or otherwise, in reliance on his own right. 21 C.J. 232, sec. 226; Wall v. Beedy, 161 Mo. 644; Reel v. Ewing, 71 Mo. 17; Moreman v. Talbott, 55 Mo. 392. (c) Under this equitable defense of laches, this court may give such judgment as the circuit court ought to have given, as to this court shall seem agreeable to law. Sec. 1514, R.S. 1919; Joy v. Cale, 124 Mo. App. 569; Patterson v. Patterson, 200 Mo. 335; Donnell v. Wright, 199 Mo. 304. (2) The court erred in refusing to give to the jury defendant's peremptory instruction in the nature of a demurrer to the evidence, offered at the close of the whole case. (a) The equitable defense of laches having been set up by the defendant, and affirmative relief having been prayed for, the case was one in equity, triable by the court. Koehler v. Rowland, 275 Mo. 573; Williams v. Frazier, 294 Mo. 320; Hauser v. Murray, 256 Mo. 58; Bouton v. Pippin, 192 Mo. 469. (b) The verdict of a jury in suits in equity is only advisory and may be wholly disregarded by the chancellor. Northrip v. Burge, 255 Mo. 667; Blood v. W.O.W., 140 Mo. App. 542; Southern Bank v. Nichols, 202 Mo. 319; Robinson v. Dryden, 118 Mo. 539; Cox v. Cox, 91 Mo. 78; Hess v. Miles, 70 Mo. 205; Bouton v. Pippin, 192 Mo. 474; Coons v. Coons, 236 S.W. 358. (c) The verdict was against the physical facts. Courts pay no attention to the testimony of witnesses which is clearly irreconcilable with plain physical law and fact. McNamara v. Railway, 133 Mo. App. 650; Jaffi v. Railway, 205 Mo. 466; Zaloutchen v. Railway, 127 Mo. App. 584; Stafford v. Adams, 113 Mo. App. 721; Rutledge v. Swinney, 261 Mo. 142; McClanahan v. Railway, 147 Mo. App. 409. (3) There is no substantial evidence to support the verdict. Jackson v. Hardin, 83 Mo. 175; Teckenbrock v. McLaughlin, 209 Mo. 533. (4) By act of the Legislature, all river beds in navigable streams in this State, left by the recession or reliction of waters, and all islands formed in said streams, were granted to the respective counties where they were situated, for school purposes. Laws 1895, p. 207; Sec. 7029, R.S. 1919; Frank v. Goddin, 193 Mo. 390; Moore v. Farmer, 156 Mo. 43. (a) An island is regarded as in the nature of an accretion to the bed of the river and belongs to the State the same as the river bed itself. Payne v. Hall, 192 Iowa, 780; Perkins v. Adams, 133 Mo. 31. (b) Atchison County having issued to defendant Johnson a quitclaim deed to the land in controversy, is presumptive evidence that the land conveyed thereby was an island, or part of an abandoned river bed or channel which, under the law, belonged to Atchison County. This presumption is not conclusive, and ought not to prevail if a preponderance of the evidence shows that such is not the fact. Coulthard v. McIntosh, 143 Iowa, 394. (c) The evidence that the land in controversy rose as a sand-bar in the Missouri River; was surrounded by waters of the river for many years; had well defined banks; gradually increased in size until it was over a mile long and over a mile wide, with great trees upon it, not only establishes that said land was an island, but that it was of a permanent nature and had not washed away. Scott v. Lattig, 227 U.S. 229, 57 L. Ed. 490. (5) The court erred in giving to the jury Instruction 1 on behalf of plaintiffs. (a) Said instruction climinates the legal requirement that plaintiffs were required to cover upon the strength of their own title, and not upon the weakness of defendant's title. 32 Cyc. 1329; Parker v. Wear, 230 S.W. 78; Senter v. Lumber Co., 255 Mo. 590. (b) Said instruction further fails to recognize the fact that if the land in question was the old bed of the Missouri River, and that the said river suddenly abandoned and left said old bed, then, in that case, said land belonged to Atchison County, and passed by its deed to defendant Johnson. Laws 1895, p. 207; Sec. 7029, R.S. 1919; Cooley v. Golden, 117 Mo. 33. (6) The court erred in giving to the jury Instruction No. 2 on behalf of plaintiffs. Said instruction eliminated the defense of adverse possession set up in the answer, and proved by defendant. The evidence disclosed that defendant had been in possession of the land in controversy for much more than ten years. Sec. 1305, R.S. 1919; Franklin v. Cunningham, 187 Mo. 184; Scannell v. Am. etc., Co., 161 Mo. 606. (7) The court erred in giving to the jury instructions 3, 4 and 6 on behalf of the plaintiffs. There is no evidence in the case that the land in controversy accreted to the high bank, or to and against land which had theretofore been made to and against the high bank. 38 Cyc. 1617 (III). (8) The court erred in giving to the jury Instruction 5 on behalf of the plaintiffs. Said instruction is erroneous for its language is contradictory, and not based on the evidence. 38 Cyc. 1617 (III); 38 Cyc. 1604 (f); Moore v. Farmer, 156 Mo. 33. (9) The court erred in receiving and recording the verdict, for that plaintiffs did not offer an instruction, nor did the court, of its own motion, give an instruction to the jury by which accretions should be apportioned. Crandall v. Allen, 118 Mo. 412; Deerfield v. Arms, 17 Pick. 41. (10) The court erred in refusing to receive in evidence the two maps offered by defendant, to-wit: Rummerfield's map of Atchison County for the year 1894, and S.S. Hughes's map of Atchison County for the year 1877. Grady v. Royar, 181 S.W. 432; 22 C.J. 910, sec. 1114.

John C. Landis, Jr., and Mayer, Conkling & Sprague for respondents.

(1) The court did not err in finding for the plaintiffs and against the defendant upon defendant's alleged defense of laches. (a) Plaintiffs' petition stated an action at law wherein plaintiffs ground their right of action upon a legal title, as distinguished from an equitable claim of title. Laches is peculiarly a defense to an equitable claim or cause of action, and has no place as a defense to an action at law, or to an action wherein plaintiffs stand upon a legal claim of title. Hecker v. Bleish, 319 Mo. 172; Kellogg v. Moore, 271 Mo. 189; Bell v. George, 275 Mo. 30; Brooks v. Roberts, 281 Mo. 551; Willis v. Robinson, 291 Mo. 675. (b) Even if this case could be viewed as one of equitable cognizance, the defense of laches is without substance, as the facts do not support it. Kellogg v. Moore, 271 Mo. 194; Carson v. Lumber Co., 270 Mo. 245; Bell v. George, 275 Mo. 32; Carlin v. Bacon, 16 S.W. (2d) 49. (2) Defendant's demurrer offered at the close of all the evidence was properly overruled. (a) This being an action at law, where ownership was the only issue, the verdict of the jury is conclusive on this appeal, if there is substantial evidence to support it, and absent, also, any reversible error committed during the trial. Cullen v. Atchison County, 268 S.W. (Mo.) 95; Dumm v. Cole County, 315 Mo. 568; McDaniels v. Cutburth, 270 S.W. (Mo.) 357; Biondi v. Coal & Coke Co., 9 S.W. (2d) 598. There was abundant substantial evidence to support the verdict. Cullen v. Atchison County, 268 S.W. (Mo.) 93; Griswold v. Hall, 191 S.W. (Mo.) 1011; Doebbeling v. Hall, 310 Mo. 225; Anderson v. Sutton, 295 Mo. 210. (b) The verdict was not against the physical facts. Bleish v. Rhodes, 242 S.W. (Mo.) 973; Anderson v. Sutton, 295 Mo. 210. (3) There was no error in the giving of plaintiffs' instructions. Chinn v. Naylor, 182 Mo. 583. Instruction 2 was proper, as there was no evidence of adverse possession by defendant. Bleish v. Rhodes, 242 S.W. (Mo.) 973; Doebbeling v. Hall, 310 Mo. 220; Newbrough v. Moore, 202 S.W. (Mo.) 551; Hecker v. Bleish, 319 Mo. 171. (4) Plaintiffs were the exclusive riparian proprietors as to the accretion in question, and an instruction relative to an apportionment of such accretion was unnecessary. Crandall v. Allen, 118 Mo. 403. Besides, the defendant cannot now be heard on this ground. Naylor v. Cox, 114...