Dee v. Nachbar

• Decision Date: 10 December 1907
• Citation: 207 Mo. 680,106 S.W. 35
• Parties: DEE v. NACHBAR.
• Court: Missouri Supreme Court

106 S.W. 35

207 Mo. 680

DEE v. NACHBAR.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. PLEADING—JUDGMENT ON PLEADINGS—INCONSISTENT DEFENSES.

Where, in an action involving a boundary dispute, the answer pleaded the statute of limitations and estoppel, plaintiff was not entitled to judgment on the pleadings though the plea of limitations was insufficient where the plea of estoppel was good, as the defenses were not inconsistent, and if they had been plaintiff's remedy was by motion to strike out or to require defendant to elect upon which one he would stand, and not by motion for judgment on the pleadings.

2. TRIAL—PLEA—INSUFFICIENCY—RIGHT TO PEREMPTORY INSTRUCTION.

Where, in an action involving a boundary dispute, the plea of limitations, in an answer pleading both limitations and estoppel, was insufficient, plaintiff was not entitled to an instruction to find for him, the plea of estoppel being good.

3. SAME—INSTRUCTIONS—REQUEST—INSTRUCTIONS ALREADY GIVEN.

The refusal of a requested instruction practically covered by a correct instruction given by the court on its own motion was not error.

4. APPEAL—RECORD—QUESTIONS PRESENTED— SETTING OUT EVIDENCE—NECESSITY—REVIEW OF INSTRUCTIONS.

Refusal of trial court to give requested instruction would be held proper on appeal, where there was no evidence in the abstract on which the instruction could be predicated.

5. ESTOPPEL—EVIDENCE—DECLARATIONS— PERSONS ENTITLED TO BENEFIT OF.

Where a landowner made statements to an adjoining landowner in regard to a stake and boundary line between their respective lands, such statement was admissible on the issue of estoppel in favor, not only of the person to whom it was made, but also in favor of the persons claiming title through him.

6. BOUNDARIES—ESTABLISHMENT—INSTRUCTIONS.

In an action involving a boundary dispute, a requested instruction on the issue of estoppel that unless the jury believe that a stake and line pointed out by plaintiff as the true line to defendant's predecessor in title "has always since that time been taken and agreed between plaintiff and defendant" and his grantor, to be such boundary, they must disregard all evidence as to the pointing out of the stake, was properly refused, since it was only necessary that the possession of the adjoining landowner and his grantees continue long enough to indicate what their intention was, and the requested instruction authorized the jury to find for plaintiff if he had at any time after the pointing out of the line, even up to the time of the submission of the case to the jury, changed his mind or denied that such line was the proper one.

7. APPEAL—RECORD—QUESTIONS PRESENTED— SUFFICIENCY OF EVIDENCE.

Where the entire evidence is not preserved by bill of exceptions, the court, on appeal, will not pass upon a question controlled entirely or practically by the evidence.

8. TRIAL—INSTRUCTIONS—ASSUMING FACTS — UNCONTRADICTED EVIDENCE.

The giving of an instruction assuming a certain fact as established was not ground for reversal on appeal, where there was no evidence in the record controverting such fact.

9. APPEAL—REVIEW—HARMLESS ERROR.

Rulings by the trial court on evidence and motions are not ground for reversal on appeal, and will not be passed upon where they could not have changed the result of the trial.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by Thomas J. Dee against Joseph Nachbar. From a judgment for defendant, plaintiff appeals. Affirmed.

This suit grows out of a controversy over the boundary line between two building lots in Kansas City, the petition alleging that on the 1st day of March, 1903, plaintiff was, and still is, entitled to the possession of property described as the south 3½ feet of lot No. 272, block 5, of the resurvey of Whipple's second addition to Kansas City, Mo., and that on or about said day the defendant entered upon said premises, and unlawfully withheld from plaintiff the possession thereof. Plaintiff prays judgment for the recovery of said premises, $50 damages, and $1 for monthly rents and profits from the rendition of judgment. Defendant's amended answer to the petition states:

"First. That he denies each and every allegation and averment in said petition made and contained.

"Second. For another and further answer to said petition, this defendant alleges that he and his grantors have been in the actual, continuous, undisputed, adverse possession, under claim of title, for more than 10 years prior to the filing of the plaintiff's petition herein of the following described property, to wit: Beginning on the easterly line of Allen avenue, in Kansas City, Mo., at a point 164.70 feet northeasterly from the intersection of the easterly line of Allen avenue, with the south line of the resurvey of Whipple's second addition; thence northeasterly along the easterly line of said Allen avenue, 54.90 feet, more or less, to a stake set by Koehler Bros., said stake being on a line about 5 feet and 6½ inches north of the house on lot 273 of block 5, of said resurvey of said Whipple's second addition, at the northwesterly corner of said house; thence east, or easterly and parallel with the south line of said resurvey of said Whipple's second addition, to a stake set by Koehler Brothers; thence continuing along said line to another stake set by Koehler Brothers; thence continuing easterly along said line to a point on the line running northeasterly and southwesterly through the center of said block 5 to the south line of lot 274, of block 5, of said resurvey of Whipple's second addition, thence westerly to the beginning. That he disclaims any title to, and denies that he is in possession of, any property north of the line herein described.

"Third. For another and further answer to the petition of plaintiff, this defendant says that the plaintiff, on or about the year 1894, pointed out to this defendant's grantor, N. B. Vaughn, a certain stake at or near the line of Allen avenue and on a line 5 feet and 6½ inches north of the northwest corner of the house on said lot 273, as being on the line between the property of the said plaintiff and the said N. B. Vaughn; and that said stake and line so pointed out by plaintiff, as being the correct boundary line between said properties, has always been taken and agreed to be the south boundary line of plaintiff's property, and this defendant and his grantors have made improvements upon this defendant's property in accordance with, and relying upon, said boundary line so pointed out by plaintiff. That said boundary line so pointed out by plaintiff is the north line of the property, specifically described in paragraph 2 hereof. Wherefore, defendant says that the plaintiff is estopped from claiming or asserting any other line to be the boundary line between the property of plaintiff and this defendant. Wherefore, having fully answered, this defendant prays that plaintiff take nothing by his petition, and that defendant have and recover of plaintiff his costs in this behalf expended. Wherefore this defendant prays the court to adjudge that the plaintiff has no valid right in law or equity to the property specifically described in the second paragraph of his answer, and thereupon to enter judgment that plaintiff, and all persons claiming by, through, or under him, be forever barred and estopped from having or claiming any right or title adverse to this defendant and those claiming by or through him to any of the property described in the second paragraph of this answer." Plaintiff's replication was a denial of each and every averment of the answer.

The cause was tried before the court and jury, but before any evidence was offered plaintiff orally moved the court for judgment on the pleadings, upon the ground that the pleadings show upon their face that plaintiff was entitled to a verdict for the recovery of the property, with nominal damages, and, as part of said motion, plaintiff requested the court to give the following instruction: "The court instructs the jury to find a verdict for plaintiff, in the following form: `We, the jury, find for plaintiff, and do assess his damages at one cent.'" The court overruled said motion and refused to give the instruction asked, and plaintiff duly excepted.

N. B. Vaughn, a witness for defendant, testified that he formerly owned the Nachbar house, purchasing it in January, 1894, and selling it in October, 1897, to Nachbar, and that he had had occasion to talk to Mr. Dee about the dividing line between the two lots. "Q. What was that occasion—state how it came about? A. There was a spring with a gutter we made, or water drain along the street at that time, as I had no well, and I spoke to him about this spring, and it was just about on the line, or a little over on his right division line, and so he said all right, I could fix it, so I went there to fixing it, and the stake was there which he said was the corner stake between the lots. Q. Who said that? A. Mr. Dee. Q. I asked you what was the occasion for your talk about the line and his telling you that. Now, you wanted to move this so this spring would come out up there by your house, as I understand it? A. Yes, sir. In digging, I followed the stream until I reached the rocks, and got it over on my lot and some 10 or 12 feet from where I started, before I got it as far towards the house, to get it out of the sidewalk. We didn't exactly make it on account of the rocks. In the course of the digging I dug up a stake. Mr. Dee was there with me at the time, and said that this stake was the corner of the lot. The stake was about six feet from where the line would run by the stone wall—from the corner of the house projected out to Allen avenue. There used to be a fence or was a fence when I purchased this property, running from about the rear of this house down to Allen avenue. The fence in front was a post, and one or two planks on it, and after it got back to...