Diers v. Peterson
| Decision Date | 19 November 1921 |
| Citation | 234 S.W. 792,290 Mo. 249 |
| Parties | GEORGE W. DIERS and BLANCHE DIERS, Appellants, v. IDA F. PETERSON and SYLVESTER P. PETERSON |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.
Affirmed.
Stubenbrauch & Hartz for appellants.
(1) This is an action in equity. In such cases this court will review the facts and determine upon the correctness of the judgment. Herryford v. Moore, 181 S.W. 390; Gill v. Newhouse, 178 S.W. 495; First National Bank v Fry, 216 Mo. 24; Myers v. Schuchmann, 182 Mo 159; Primm v. White, 162 Mo.App. 594, 142 S.W. 802; Grazt v. City of Kirkwood, 165 Mo.App. 196; Courtney v. Blackwell, 150 Mo. 245. (2) The defendants made no claim to plaintiffs' property under color of title. The defendants in their pleading assert that they have had the possession of that part of plaintiff's property now in dispute for more than ten years under claim of ownership and therefore have title by limitation. In such cases to make title by limitation two things are necessary first, actual physical possession of the property in dispute, and second, such possession must be accompanied by a claim to the title. Either one without the other is not sufficient. Benne v. Miller, 149 Mo. 228; Golterman v. Schiermeyer, 125 Mo. 291; Stevenson v. Black, 168 Mo. 560; Ware v. Cheek, 201 S.W. 847. (3) The evidence, however, did not show any actual physical possession of plaintiffs' property by defendants before 1913. The acts relied upon to establish possession must always be as distinct as the character of the land reasonably admits of and should be so patent that the owner of the ground could not be deceived. Golterman v. Schiermeyer, 125 Mo. 291; Musick v. Barney, 49 Mo. 463; 2 Corpus Juris, 55. Nor did defendants make any claim to the title to that part of plaintiffs' ground now occupied by defendants' improvement before the summer of 1913. (4) The evidence fails to show the defendants intended to claim title to the north edge of the improvements in question regardless of the true line. Defendants claim they never knew that their improvements were in any respect on plaintiffs' property, and that they did not know it now. How, then, can there be adverse possession?
Milford W. Rider for respondents.
(1) The finding of the trial court that defendants have been for more than ten years prior to the bringing of this suit, in open, notorious, exclusive, continuous and adverse possession under a claim of ownership of the tract in question, was warranted by the evidence. Bingham v. Edmonds, 210 S.W. 885; Walbrunn v. Ballen, 68 Mo. 164; Mather v. Walsh, 107 Mo. 121. (2) Actual, continued, notorious and hostile possession is tantamount to a claim of ownership. Wilkerson v. Eylers, 114 Mo. 254. (3) Where persons in possession of land hold possession for the statutory period up to a line claimed by them to be the true line, then such possession is adverse. The mere fact that such person is ignorant of the true line does not weaken his rights where he has, for the necessary period, claimed that the line as held by him was the true line. Mangold v. Phillips, 186 S.W. 488; Walbrunn v. Ballen, 68 Mo. 164; Batner v. Baker, 108 Mo. 311; Davis v. Braswell, 185 Mo. 576, 581; French v. Pearce, 8 Conn. 440, 21 Am. Dec. 680; Rennert v. Shirk, 163 Ind. 542; Anderson v. Buchanan, 116 N.W. 694; Hitchings v. Morrison, 72 Me. 331; Sadtler v. Peabody Heights Co., 66 Md. 1; Matthews v. Ry Co., 110 Mich. 170, 64 Am. St. 336; Seymour, S. & Co. v. Carli, 31 Minn. 81; Weeks v. Upton, 99 Minn. 410; Crary v. Goodman, 22 N.Y. 170; Barnes v. Light, 116 N.Y. 34; Hindley v. Manhattan Ry. Co., 185 N.Y. 335; Eldridge v. Kenning, 12 N.Y.S. 693; Gist v. Doke, 42 Ore. 225. (4) Where there is a question whether a party holding land beyond the boundary line intended to hold adversely, if there were permanent improvements made and used by the claimant, this would tend to show an intention to hold adversely. Mangold v. Phillips, 186 S.W. 988; Hamilton v. West, 63 Mo. 93; Cole v. Parker, 70 Mo. 372. (5) Even if in this State color of title were necessary to originate ownership by limitation (see Quick v. Rufe, 164 Mo. 412), that term, as used by appellants' counsel has no place in the law of boundary lines established by adverse possession. If one enclosed more land than is called for in his deed, and it be the intention of the possessor to hold and claim as his own all the land enclosed and possessed, such claim of ownership to such land is matured into a perfect title by the open, notorious, continuous, exclusive possession for the statutory period. Vogt v. Bergman, 189 S.W. 1166; Bingham v. Edmunds, 210 S.W. 885; Shotwell v. Gordon, 121 Mo. 482; Mangold v. Phillips, 186 S.W. 988; Milligan v. Fritts, 226 Mo. 189; Handlan v. McManus, 100 Mo. 124; Hamilton v. West, 63 Mo. 93; Cole v. Parker, 70 Mo. 372. (6) Where adverse possession has been held for the statutory period up to a certain line, the burden is on the opposite party to show that such possession was with the intention of only claiming to the true line. Vogt v. Bergman, 189 S.W. 1166; Gloyd v. Frank, 248 Mo. 477; Mangold v. Phillips, 186 S.W. 988; Lemmons v. McKinney, 162 Mo. 525, 531; Bartlett v. Boyd, 175 S.W. 947; Hodges v. Pollard, 149 Mo. 216, 226.
The petition states that plaintiffs are the owners of and entitled to the possession of the south 30 feet of the north 40 feet of lot 41, corrected plat of North Altamont, an addition in Kansas City, Missouri; that the defendants are the owners of a tract about 30 feet wide south of and adjacent to plaintiffs' lot; that the defendants, on or about March --, 1915, wrongfully and unlawfully entered upon and erected certain permanent improvements upon the south one foot of plaintiffs' premises, to-wit: a stone wall six feet high and twenty inches think, made of stone and mortar, a concrete sidewalk, and part of a three-story building; that said unlawful occupation constituted a cloud on plaintiffs' title, which plaintiffs are entitled to have removed. The prayer is that plaintiffs be adjudged to be the sole owners and entitled to the exclusive possession of the said lot and for a mandatory injunction ordering defendants to remove said improvements from plaintiffs' property, and for general relief.
The answer is a general denial, and a plea of more than ten years' adverse possession, also of estoppel and laches. The court found the issue for the defendants on the plea of adverse possession.
The lots are each about thirty feet wide, fronting on the west side of Brooklyn Avenue, and 124 feet deep; plaintiffs' property being number 2928 and defendants' number 2930, Brooklyn Avenue. Plaintiffs, George W. Diers, and his sister Blanche Diers, acquired title to their lot June 25, 1912, and took possession thereof at once. Defendants' lot was about eighteen inches higher than plaintiffs' lot. Miss Diers testified that in the year 1913 the defendants began making improvements on the cottage on their lot, and also built a stone wall five or or six feet high, extending from the front of the lots westward a distance of 24 feet; from that point they built a concrete walk on the north side of the house thirty-two feet long, and from the west end of this they continued the wall to the rear end of the lots; that she protested to Mr. Peterson that he was encroaching on plaintiffs' lot, but he insisted he was on the line. They offered in evidence an unofficial survey made by Mr. Clarke, a civil engineer, which showed that the north face of the stone wall at its east end extended eight-tenths of a foot over the line of his survey onto plaintiffs' lot, and that this line intersected the north face of the wall at a point eighty-four feet west of the northeast corner of defendants' lot, and that the west end of this line was fifteen-one-hundredths feet north of the north face of the wall. Defendants were engaged for several years in rebuilding their dwelling house, and when completed Miss Diers testified that the roof or covering over a door on the north side of the house projected one or two inches over the surveyor's line. George Diers testified that he never talked to Peterson about his improvements being over the line, but that he refused him permission to build a scaffold projecting over onto their lot, and that after the wall and the foundation of the house were completed, he told Peterson he thought it was over on plaintiffs' lot.
The defendants bought their lot from Lee Utley in March, 1903. Sylvester Peterson testified that in the year 1902, Utley erected a small cottage on the lot, built a concrete sidewalk in front of the lot which extended north to the north line of the triangle or strip in dispute prolonged east, and also constructed a stone retaining wall along the north side of his lot to keep the soil from washing away. This wall was from twelve to fourteen inches thick, and from one to two feet high. The north face of the wall was in line with the north end of the sidewalk, and with an arrow mark cut in the curbstone by Utley. The eastern portion of Utley's lot was graded up to the wall about eighteen inches higher than plaintiffs' lot. At the time defendants purchased the lot, Utley showed them the property and the north end of the sidewalk, the mark in the curbstone, and the north line of the wall as the north boundary of the lot. He also showed them two stakes, each with a tack in it, at the northeast and northwest corners of the lot, and another mark in the curbstone thirty feet south of the first mentioned mark as indicating the south line of the lot.
The testimony of the defendants is that they took possession of their lot in March, 1903, and have lived there ever since, occupying and...
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