Flynn v. Wacker
| Decision Date | 12 July 1899 |
| Citation | 52 S.W. 342,151 Mo. 545 |
| Parties | Flynn et al. v. Wacker et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. Jacob Klein, Judge.
Reversed.
M Kinealy for appellants.
(1) The instruction given by the court of its own motion is unsupported by any evidence. (2) Whilst this case presents the feature of a mistaken boundary, the evidence is uncontradicted that the defendant fenced up the lot now occupied by him, claiming that identical tract as his own and as the tract pointed out to him by Holste, and made permanent and valuable improvements on it more than ten years prior to the institution of this suit and thereafter, and for more than ten years prior to the commencement of this suit occupied it under the same claim, without any agreement or intention at any time to abide by any subsequently discovered true line and hence he has title under the statute of limitations. Ernsting v. Gleason, 137 Mo. 594; Handlan v. McManus, 100 Mo. 124; Goltermann v Schiermeyer, 111 Mo. 404; Battner v. Baker, 108 Mo. 311; Brummell v. Harris, 148 Mo. 430. (3) The running of the statute was not interrupted by the forcible entry of plaintiff followed by his expulsion by legal process on a proceeding against him for forcible entry and detainer. Cary v. Edmonds, 71 Mo.523.
Lubke & Muench and Geo. W. Lubke, Jr., for respondents.
(1) It is not contended that the instruction complained of does not state the law correctly. It is only objected that the evidence does not sustain the instruction. The instruction is amply sustained by the authorities. Goltermann v. Schiermeyer, 125 Mo. 291; Pharis v. Jones, 122 Mo. 125; Shotwell v. Gordon, 121 Mo. 482; De Bernardi v. McElroy, 110 Mo. 125; Crawford v. Ahrnes, 103 Mo. 88; Ernsting v. Gleason, 137 Mo. 594; McWilliams v. Samuel, 123 Mo. 569; Kunze v. Evans, 107 Mo. 487; Skinker v. Haagsma, 99 Mo. 208; Krider v. Milner, 99 Mo. 145. (2) The finding of the trial court, sitting as a jury, upon a contested question of fact, is conclusive upon the appellate court, and will not be disturbed by it. Pitts v. Sheriff, 108 Mo. 110; Schnare v. Austin, 106 Mo. 610; Nimich v. Hill, 57 Mo.App. 226; McCartney v. Ins Co., 45 Mo.App. 373.
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 No. 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 4 1-2 inches on the east side of Third street; and lot 2 was shown on the plat to contain fifty 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 1st, 1882, Kennedy sold the east half of lot 1 to Henry Steinmeyer. On July 20th, 1883, Steinmeyer conveyed 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 9th, 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 division 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 fifty feet thus pointed out, improved it and has been in possession of it ever since, and was in possession on January 14th, 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 2 inches the true eastern line of Third street is established. The plat of block 107 of Harlem addition calls for 14 lots of fifty feet each and one lot of 73 feet and 2 inches. So that there is in reality about two feet more land in block 107, lying between Third and Hall street, 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 to do so, he pulled down the division fence and took 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 fifty 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 ten 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:
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 respectively claim title, in ignorance of the true dividing line between the same, occupied the adjoining tracts of land, or portions thereof, above mentioned, up to a fence erected between the parcels respectively occupied by them; and that the parties so in possession supposed this fence to be the true dividing line between said two tracts or lots of land; and if the Court further believes from the evidence that said parties in the occupation of their respective adjoining tracts of land supposed themselves to be in occupation up to the true dividing line between said tracts, and that neither of them intended to claim any land not included in their respective deeds, but that they intended to claim only to the true line between said lots, then such occupation was not adverse, and could not ripen into a title in favor of either party, beyond the true dividing line between said two tracts of land, when the same was discovered."
To which action and ruling of the court in giving said instruction the defendant duly excepted.
The defendants asked and the court gave the following instructions:
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