Doebbelong v. Hall

• Decision Date: 01 April 1925
• Docket Number: No. 23856.,23856.
• Citation: 274 S.W. 1049
• Parties: DOEBBELONG v. HALL et al.
• Court: Missouri Supreme Court

274 S.W. 1049

DOEBBELONG v. HALL et al.

No. 23856.

Supreme Court of Missouri, Division No. 1.

April Term, 1925.

Appeal from Circuit Court, Holt County; Edward E. Porterfirld, Special Judge.

Action in ejectment by Mary F. Doebbeling against Miriam V. Hall and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. B. McGilvray and F. G. Warren, both of Kansas City, A. M. Tibbels, of Mound City, and B. G. Pyle, for appellants.

W. E. Bissett, of Mound City, and H. B. Williams, of Craig, for respondent.

GRAVES, J.

We could take the statement of either side to this controversy, and have a fair basis for the determination of the legal questions involved. We think best to state the case in our own way.

The action is one in ejectment, wherein is asked $300 for the unlawful detention of the lands involved, and for an assessment of monthly rents and profits at $25 per month. The subject-matter of the controversy is about 74 acres of accreted lands in Holt county. There is but little out of the ordinary in the petition, except that it pleads the reasons for plaintiff's claim to these accreted lands. After describing by metes and bounds the lands claimed by plaintiff, the petition thus proceeds:

"Which said lands were formed and made by accretions deposited by the Missouri river by gradual and continued deposits upon, along, and against the shore line of said river, and to and against the following described deeded riparian land, which deeded lands, during all the times herein mentioned, were owned by and in possession of this plaintiff and her grantors, to wit: The north half of the north one-fourth of the northeast quarter of section 18, in township 62, of range 40, in Holt county, Mo.—and for reasons aforesaid the accretions so made and formed as aforesaid became and are a part of the deeded riparian land aforesaid; that aforesaid accreted lands were, prior to 1918, wild and uncultivated lands. And plaintiff being so entitled to the possession thereof, defendants afterwards, to wit, on the 1st day of April, 1919, entered into and upon such premises and unlawfully withhold from plaintiff the possession of the aforesaid accreted lands, to plaintiff's damages in the sum of $300."

As indicated, the prayer was for possession of the land and for the land and for the damages and rents above stated. Originally the action was against Benjamin Quimby, Homer B. Quimby, and John L. Quimby. Upon her application, Miriam V. Hall was made a party defendant. Benjamin Quimby died, and his heirs were then made parties defendant, and hence the present title of the case.

The answer filed by Miriam V. Hall is short, and reads:

"Comes now the defendant Miriam V. Hall, and for her separate answer to the petition of plaintiff herein filed denies each and every allegation therein contained. And for further answer and a further defense, this defendant says that on the 26th day of November, 1917, the defendant Benjamin G. Quimby entered into a lease agreement with this defendant Miriam V. Hall, by the terms of which agreement this defendant leased the land described in plaintiff's petition, or at least a portion thereof, to the defendant Benjamin G. Quimby, for the term of 5 years, commencing on the 1st day of March, 1918, and ending on the 28th day of February, 1923; that the said Benjamin G. Quimby, one of the defendants herein, agreed to pay this defendant as rent of said land one-third of all the grain raised on the said premises for the first year, and one-half of the grain raised thereon for the remaining term of said lease; and that the defendants John L. Quimby and Homer 3. Quimby have rented portions of this land as subtenants of their codefendant, Benjamin G. Quimby. And for further answer and defense to plaintiff's petition this defendant states that, if the land described in plaintiff's petition accreted to plaintiff's land, as in plaintiff's petition alleged, that plaintiff's cause of action did not accrue within 10 years before the commencement of this action.

"Defendant further states that this defendant Miriam V. Hall has been in open, notorious, peaceable, and exclusive possession of said land in plaintiff's petition described, under color of title, claiming to own the same and paying taxes thereon, for more than 10 years before the filing of plaintiff's petition herein, and that whatever right plaintiff may have had in said land, if any, is long since barred by the statute of limitations.

"Wherefore, this defendant asks to be hence discharged with her costs in this behalf sustained."

The three Quimbys filed a joint answer, upon which the trial was had, as follows:

"Defendants, for their amended answer to plaintiff's petition, admit that they occupy said land described in said petition, but state that they are tenants upon said land by virtue of a written lease from M. V. Hall; that they have been in possession of said land under said lease since the 1st day of March, 1918, and are entitled to the possession of said land until the 1st day of March, 1920.

"Defendants further state that the plaintiff herein knew of the said possession and terms of said lease, and that until their crops were planted, to wit, on or about the 1st day of May, 1919, they had no notice of the plaintiff's claim of title to said land; that the said plaintiff allowed defendants herein to plant said crops, knowing the terms of the said lease as aforesaid, and is therefore estopped from claiming possession of said land from said defendants until the expiration of the aforesaid lease, to wit, March 1, 1920.

"Defendants deny each and every other allegation in the plaintiff's petition which have not been herein specifically admitted.

"Wherefore, defendants ask judgment in the above-entitled cause, and their costs in this behalf expended."

Later (in 1921) the heirs of Benjamin Quimby were made defendants in lieu of the deceased, Benjamin Quimby, and by their attorney recognized the order reviving cause as against them, and entered their appearance in the case. The record shows no reply, but this is immaterial, as the cause proceeded as if one had been filed.

Upon a trial before a jury the plaintiff had verdict for the possession of the land, which land is described in the verdict as in the petition. There was no finding as to damages for unlawful detention, or as to the value of the rents and profits. From the judgment upon such verdict, the defendants have appealed. The foregoing outlines the pleadings and judgment. Of the facts later. We have quoted the answers in full, because of some questions urged in the briefs of the appellants.

Further facts are that the lands in dispute are in section 18 of township 62, range 40, in Holt county. This was a fractional section when the government had a survey made in 1840. The township was a fractional township on account of the meanderings of the Missouri river, which at this point is the line between the states of Missouri and Nebraska. Starting in at the north line of said township 62 (in 1840), the river ran in a slight southeasterly course, but it turned and ran in a strong southwesterly course for a distance, and then turned and ran in a strong southeasterly course. At this time (survey of 1840) the north half of section 18 was designated as lot 1 and lot 2. Lot 1 was the northeast quarter of the section, less what was cut off by the river. There was 138.60 acres in this lot. The south 80 of this northeast quarter was a full 80, but the north 80, owing to a cut in of the Missouri river, had only 58.60 acres, making a total in this northeast quarter (denominated lot 1) of 138.60 acres. In what would be the northwest quarter of section 18, there was but 56.22 acres, and this was denominated on the government plat as lot 2. The southeast quarter of section 18 appears to be a full 160 acres, and the southwest quarter would possibly have been a full 160 acres, except, as best we can gather from the government plat, all these sections in township 62 bordering on the range line to the west seem to be short sections, i. e. the west half of the sections appear to be short. The photographic copy of this original plat has such small letters and figures that we have found it difficult to make them out by the use of a strong reading glass. The statements of both parties to the case are in accord with the following from respondent's statement:

"Offer was made by the defendant Miriam V. Hall to show the record title in her to lot 2, being the fractional northwest quarter of section 18, and to the northeast quarter of the southwest quarter of said section (see Appellants' Abstract, pp. 55 to 57), all of which evidence, over the objections of the defendants, was excluded by the court.

"The record shows: That in the year 1840, a government survey was made of section 18, township 62, range 40, and at that time lot 2 of the northwest quarter, and lot 1 of the northeast quarter bordered on the east bank of the Missouri river (Defendants' Exhibit 1, page 24, Appellants' Abstract of the Record, also Plaintiff's Exhibit A, inserted between pages 14 and 15 of Respondent's Abstract, the line marked `original bank,' surveyed by government in 1840, thereon, showing location of east bank of river in 1840); i. e., the Missouri river formed the west boundaries of said tracts. That thereafter the river began to cut to the east and continued to so cut until it cut east to the line marked in Plaintiff's Exhibit A, `Easterly Erosion Line.' About the year 1895 it had cut away lot 2, the west one-half of lot 1, and was running in a northwesterly and southeasterly direction across the northeast quarter of section 18, leaving approximately 18 acres in the north one-half of the northeast quarter of the northeast quarter, 13 acres in the south one-half of the northeast quarter of the northeast quarter and 8¾ acres in the northeast corner of the south one-half of the northeast quarter (Plaintiff's Exhibit A,...