Flynn v. Wacker

• Decision Date: 12 July 1899
• Citation: 151 Mo. 545,52 S.W. 342
• Parties: FLYNN et al. v. WACKER et al.
• Court: Missouri Supreme Court

52 S.W. 342

151 Mo. 545

FLYNN et al. v. WACKER et al.

Supreme Court of Missouri, Division No. 1.

July 12, 1899.

ADVERSE POSSESSION — SUFFICIENCY OF EVIDENCE.

Plaintiff and defendant bought adjoining tracts of land, and built a fence on what they thought to be the dividing line. The tract thus accorded to defendant included some of plaintiff's land, and defendant held it for more than the statutory period. On a survey being made, defendant refused to give up the land. On the trial he testified that when he took the land he had no intention of taking more than his own. Held, that these facts do not justify the application of the principle that where parties hold possession up to a fence, believing it to be the true dividing line, intending to claim a right only to what their deeds comprise, and to hold subject to future survey, the possession is not adverse.

Appeal from St. Louis circuit court; J. N. Klein, Judge.

Ejectment by Charles Flynn and others against William Wacker and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Ejectment to recover possession of the eastern half of lot No. 1 of block No. 107 of Harlem addition to the city of St. Louis, in city block 3465, having a front of 37 feet and 6 inches on the north side of Pope avenue. Frederick Holste owned lots 1 and 2 of block 107 aforesaid. Lot 1 was shown on the plat of the addition to contain 73 feet and 2 inches front on the north side of Pope avenue, by a depth of 145 feet 4½ inches on the east side of Third street; and lot 2 was shown on the plat to contain 50 feet on the north side of Pope avenue, by a depth northwardly of 145 feet, and the plat showed lot 2 to lie east of lot 1. Holste sold lot 1 to James P. Kennedy in 1875, and on December 1, 1882, Kennedy sold the east half of lot 1 to Henry Steinmeyer. On July 20, 1883, Steinmeyer conveyey said east half of lot 1 to Mary Pieper, then the wife of Conrad Pieper, but since his death intermarried with Charles Flynn. On October 9, 1875, Holste sold lot 2 to Perry Gosey, and in March, 1882, Gosey conveyed said lot 2 to Louisa Wacker, the wife of the defendant. None of the parties had any surveys made of the lots. The streets were not made or visible on the face of the land. The surrounding country was not built up. Kennedy took possession of what he supposed was lot 1, and Gosey took possession of what he supposed was lot 2. They built a division fence on what they believed to be the true dividing line, and dug a well on that line to supply both with water. When Wacker bought from Gosey, in 1882, Holste went to the place with Wacker, and, pointing to the division fence, said to Wacker, "From that fence fifty feet east is your lot." Wacker took possession of the 50 feet thus pointed out, improved it, and has been in possession of it ever since, and was in possession on January 14, 1895, when this suit was instituted. In 1893 Flynn had a survey made, by which it appears that the division fence was not placed upon the true dividing line, but was placed about 25 feet too far west. This was occasioned by a mistake as to the true eastern line of Third street. Kennedy started too far west to measure his 73 feet and 2 inches. Hence Gosey, owning lot 2, which lay east of lot 1, located his west line as much onto lot 1 as Kennedy located his west line onto Third street. The survey made in 1893 shows that starting from a stone in Hall street, the street next east of Third street, and measuring west 775 feet and two inches, the true eastern line of Third street is established. The plat of block 107 of Harlem addition calls for 14 lots of 50 feet each, and one lot of 73 feet and 2 inches. So that there is in reality about 2 feet more land in block 107, lying between Third and Hall streets, than the plat calls for. In other words, if each of these parties and the owners of all the other lots in block 107 were placed on their proper lots, each would have all he bought or is entitled to. The whole trouble arises from the fact that Kennedy and Gosey made a mistake as to the true location of lots 1 and 2. They acted without the aid of a surveyor, and the usual mistake followed, — a lawsuit as to the true division line. No question, however, arose while Kennedy and Gosey were the owners, nor from 1882, when defendant bought the property and commenced to improve it, until after Flynn had the survey made, in 1893. Then, having discovered the mistake in locating lots 1 and 2, and realizing that the parties had improperly located their lots, he tried to convince Wacker of the mistake; and, failing so to do, he pulled down the division fence, and took off the necessary number of feet lying east thereof to make up his half of lot 1. Wacker brought forcible entry and detainer, ousted Flynn, regained possession, and replaced the fence on the old line. Thereupon Flynn instituted this action in ejectment. The answer is a general denial and a plea of the statute of limitations.

The case was tried by the court without the aid of a jury, and the facts stated were developed. The defendant claimed that he had taken possession of the specific 50 feet that lay east of the division fence that Kennedy and Gosey had put up, and which Holste pointed out to him, and that he had been in open, notorious, visible, continuous, and adverse possession thereof for more than 10 years before the beginning of this action, claiming it specifically, and not subject to any future ascertainment of any true line, and, hence, that he had acquired title by limitation. After testifying to this effect on direct and cross examination, the court asked Wacker the following questions, and he replied as follows: "By the Court: Q. I understand, Mr. Wacker, that when you built your house, and found the fence that Mr. Holste pointed out to you, you supposed that to be the dividing line between your lot and Mrs. Boehmer's lot? A. Yes, sir. Q. That is what you supposed? A. Yes, sir. Q. But you had no survey made, to ascertain whether that was correct or not? A. No, sir. Q. You just took into your possession fifty feet from that fence? A. Yes, sir. Q. And fenced it up on the east side? A. Yes, sir. Q. And after that time, you say, you had it rented? A. Yes. Q. I suppose you had no intention of taking anybody else's land, excepting your own, had you? A. No, sir." The court, of its own motion, then instructed as follows: "If the court, sitting as a jury, finds from the evidence that the plaintiff Mary Flynn, and the persons under whom she claims title, and the defendants William Wacker and William Smith, and the persons under whom they claim title, were respectively the owners of adjacent tracts of land in block No. 107 of Harlem addition, now in the city of St. Louis, fronting on the north line of Pope avenue, and that the plaintiff Mary Flynn and her grantors owned the east half of lot No. 1 in said block, and those under whom the defendants claim owned lot No. 2 of said block; and if the court, sitting as a jury, further believes from the evidence that the plaintiffs and the defendants, and those under whom they...