Fiorella v. Jones

• Decision Date: 31 December 1923
• Docket Number: No. 23203.,23203.
• Citation: 259 S.W. 782
• Parties: FIORELLA v. JONES.
• Court: Missouri Supreme Court

259 S.W. 782

FIORELLA v. JONES.

No. 23203.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Motion for Rehearing Overruled March 7, 1924.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Ejectment by Jacob FioreIla against Samuel P. Jones. Judgment for plaintiff, and defendant appeals. Affirmed.

Dickinson & Hillman, of Kansas City, for appellant.

Harrison Johnston, of Kansas City, for respondent.

SMALL, C.

I. Appeal from the circuit court of Jackson county.

Suit in ejectment for a three-foot strip of ground in Kansas City. As the bill of exceptions does not set out the evidence, but simply recites that the evidence tended to prove the allegations of the parties, the case may be best stated by setting out the pleadings in full. The petition was filed June 28. 1920, and omitting the caption, is as follows:

"Plaintiff for his cause of action shows that on December 7, 1918, he was and now is the legal owner in fee and legally entitled to the possession of the following real estate in Jackson county, Mo., to wit: All of the south 20 feet of lot 10 and the north 10 feet of lot 9, in block 4, in Capital Hill, an addition in Kansas City, Mo., as shown by the plat thereof, duly .recorded in the office of the recorder of deeds of Jackson county, Mo.; that said property is a residence lot 30 feet in width by 126.20 feet in depth located on the east side of Brooklyn avenue, being the second tract north of Twenty-Fourth street, and known as No. 2339 Brooklyn avenue; plaintiff shows that a twostory, brick building and dwelling house stands thereon and that the same is his residence and home and that of his family.

"Plaintiff shows that he is in the peaceable possession of all of the said tract of ground except a strip three feet wide along the south side and edge of said tract, the same being described as the south 3 feet of the north 10 feet of lot 9, in block 4 in Capital Hill, an addition in Kansas City, Jackson county, Mo.

"Plaintiff states that on December 7, 1918, as above stated, he was the owner and legally entitled to possession of the above-described three-foot strip of ground, and that on December 8, 1918, defendant entered into possession thereof and has ever since said day excluded plaintiff and now unlawfully withholds possession of same from plaintiff; that said defendant unlawfully erected and has maintained a fence along the north edge of the east part of the said strip, thus separating same from the remainder of plaintiff's lot, and has built and maintains a sidewalk on the west portion of said strip and excludes the plaintiff from the use and possession thereof, all to plaintiff's damage as herein set out.

"Plaintiff states that he has heretofore many times demanded of defendant possession of said strip, but defendant refuses to surrender same.

"Plaintiff states that his said dwelling house is of such width and so located on his said lot that there is not space enough for a sidewalk on his lot on the north side of his house; and his house being within about 4 feet of his south line the exclusion of plaintiff from the 3-foot strip above described leaves insufficient space for passages or a sidewalk along the south side of plaintiff's house, and thus deprives plaintiff of such passageway and damages and injures plaintiff's property and use and enjoyment of same, all to plaintiff's damage and in the sum of $500; and further plaintiff states the value of the rent and profit and use of said strip is reasonably worth the sum of $500.

"Wherefore, plaintiff prays that the defendant be ejected therefrom, and that title be decreed in plaintiff, and possession decreed and restored to him and for judgment for $1,000 and his costs. Harrison Johnston,

                                  "Attorney for Plaintiff."
                

The answer was as follows:

"Comes now the above-named defendant, and for answer to the plaintiff's petition herein denies each and every allegation in the said petition contained.

"Wherefore, defendant prays to be dismissed and for his costs herein expended.

"For further answer to plaintiff's petition defendant denies that plaintiff is the owner and is legally entitled to possession of a strip of ground three feet wide claimed in plaintiff's petition, but on the contrary this defendant and those under whom he claims have been in the exclusive adverse, notorious and continuous possession of said three-foot strip of ground. under the claim of ownership for more than 10 years prior to on or about June 1, 1920. And defendant further alleges that neither Jacob Fiorella nor any one under whom he claims has asserted any claim of title or ownership to the said three-foot strip of ground for more than 10 years next before on or about June 1, 1920.

"Defendant further states that the plaintiff has unlawfully entered upon the said land on or about June 1, 1920.

"Wherefore, defendant prays judgment against plaintiff and for his costs herein expended. Dickinson & Hillman,

                                  "Attorneys for Defendant."
                

The reply was a general denial. The bill of exceptions recited as follows, as to the evidence in the case:

"Plaintiff here introduced testimony tending to prove the allegations of plaintiff's petition. The plaintiff testified that he was an alien, and that he had never declared his intention of becoming a citizen of the United States, and that he was born in Sicily and left there and came to the United States 35 years ago; that he bought the land in question and did not acquire it by inheritance or in good faith in the ordinary course of justice in the collection of a debt. The plaintiff further testified that on June 30, 1920, he forcibly took possession of the three-foot strip in question and tore down and removed the old fence and built a new fence about three feet nearer to defendant's house than the old fence.

"The defendant offered testimony tending to prove the allegations of his amended answer and also tending to prove that the plaintiff took possession of the strip of ground in question before June 16, 1920, and that the defendant filed a petition against Jacob and Mildred Fiorella for damages for trespass in the circuit court of Jackson county, Mo., at Independence, on June 16, 1920, and that the plaintiff's petition was filed on June 28, 1920."

The court gave the following instruction, among others, for plaintiff:

"(4) The jury are instructed that the plaintiff, Jacob Fiorella, is the owner of the record title to the strip of ground in controversy, and that the law presumes that the occupancy of the strip by the defendant, Jones, and those under whom he claims, was by consent of and subject to said Fiorella's ownership and not adverse; and if you find that defendant was in possession thereof on June 28, 1920, your verdict must be for the plaintiff, Fiorella, unless defendant, Jones, shows by a preponderance of the credible testimony that for ten years or more he and those under whom he claims the said strip have knowingly (1) had exclusive Possession of said strip; that is, have excluded entirely the plaintiff Fiorella and those under whom Fiorella claims from use of and passage on it; (2) held and occupied said strip under claim of right, that is, they must have pretended or asserted that they had some legal authority to hold it; (3) held adverse and hostile possession, that is, they must have intended to exclude the true owner knowing that there was a true owner; (4) had continuous Possession that is uninterrupted by Mr. Fiorella or any one else during said period; and (5) had open and notorious possession of said strip, that is, they must have had visible and unequivocal control of the same as their awn property."

The court gave the following instructions for defendant:

"D. The court instructs the jury that if you find and believe from the evidence that the defendant, Samuel P. Jones, and those under whom he claims, have been in the exclusive, notorious, adverse, hostile, and continuous possession of the strip of ground in controversy in this action under a claim of title for a period of 10 years next before the date on which plaintiff took possession of said land, if you so find, then your verdict must be for the defendant.

"E. The court instructs the jury that if you find and believe from the evidence that the plaintiff, Jacob Fiorella, was on June 27, 1920, in the possession of the strip of ground in controvery in this action, then your verdict' must be for the defendant."

The court refused the following instruction asked by defendant:

"C. The court instructs the jury that if you find and believe from the evidence that plaintiff is not a citizen of the United States, and that he has not lawfully declared his intention to become a citizen of the United States, and that the plaintiff did not acquire the real estate in controversy by inheritance or in good faith in the ordinary course of justice in the collection of debt, then your verdict must be for the defendant."

On March 19, 1921, there was a verdict for the plaintiff as follows:

"We, the undersigned jurors, find that at the date of the institution of this suit that the premises in question, namely, three (3) feet or more to the surveyed line, was in the possession of the defendant, and find the issues for the plaintiff for the possession thereof. Also, assess plaintiff's damages for the withholding of said premises by defendant at two hundred dollars .($200.00)."

                           "[Signed] Howard Farmer et al."
                

There was judgment on said verdict, which first recited said verdict in hoc verbs, and then followed judgment for possession of the three feet of land describing it as in the petition, and for the damages allowed by the jury. After unsuccessfully moving for a new trial, the defendant appealed to this court.

II. It is earnestly contended that the lower court erred in not giving instruction C asked by appellant, in effect declaring that plaintiff was not entitled to recover because he was...