Franklin v. Haynes
| Decision Date | 05 February 1894 |
| Parties | Franklin v. Haynes, Appellant |
| Court | Missouri Supreme Court |
Appeal from Maries Circuit Court. -- Hon. E. L. Edwards, Judge.
Reversed and remanded.
W. S Pope and Joseph Mosby for appellant.
(1) No evidence was ever introduced by the plaintiff showing a survey of the land sued for, or its location. The evidence is that defendant is not in possession of plaintiff's land. (2) According to the evidence of the surveyor, Williams, his survey could not have been correct, nor could he by such a survey locate the land of plaintiff, or of defendant, or properly locate anything. (3) According to the evidence the only survey ever made of plaintiff's land, was made by Terrell when county surveyor at the request of plaintiff's ancestor; and according to his testimony no part of the lands owned by the plaintiff is in the possession of, or claimed by, the defendant. (4) The judgment awards the plaintiff substantial damage, and assesses the value of monthly rents and profits when there was not a syllable of testimony given as to either. R. S. 1889, chap. 156, secs 8325, et sequitur, especially sec. 8331. Tiffin's instructions, under which lands in Missouri were surveyed to be found in Higgins' subdivisions of the public lands illustrated part first commencing at page 71, and especially paragraph 4. Lester's Land Laws and Regulations, p. 721, et seq.; Knight v. Elliott, 57 Mo. 317; Frazier v. Bryant, 59 Mo. 121, and authorities therein cited.
W. M. Barr and J. R. Edwards for respondent.
(1) The patent offered in evidence shows title to plaintiff for the north fractional half section 30, township 41, range 8 west, which stands admitted. It was shown that as much as thirty-five or forty acres of this land was in defendant's field. The other evidence of plaintiff corroborates this witness. It stands admitted that defendant had no land in the north half of this section; plaintiff shows title from the government and these facts entitle the plaintiff to judgment for possession. (2) The record fails to show the filing of any bill of exceptions in the case, but should the court consider the case as if the bill of exceptions had been filed then the point made by appellant that there was no proof of damage and rents and profits, would not affect the real issue in the case. This court can, if it sees proper, correct the judgment in relation to the damages and rents or require plaintiff to remit. It is no cause for reversing the judgment otherwise correct. (3) The patent from the United States under the pleadings in this case entitled the plaintiff to judgment on showing possession in defendant. Birch v. Gillis, 67 Mo. 102. The title was in the United States until the issuing of patent to plaintiff in 1882, and defendant acquired no rights under any possession prior or subsequent to that time.
The action was ejectment to recover the north fractional half (left bank of the Gasconade river) of section 30, township 41, range 8, in Maries county. The answer was a general denial.
It appears from the government plat, offered in evidence, that the Gasconade river flows through the north half of section 30, leaving about twenty acres of the northeast quarter on the south side. Plaintiff had a patent from the United States dated in 1882, describing the land as in the petition and naming the quantity as twenty and ninety-one hundredths acres. Defendant, it was agreed, had title from the government to the southeast quarter of the section, which appeared from the plat to contain one hundred and sixty acres. The dispute is as to the true line between these tracts.
It appeared from the evidence that the land claimed by the defendant, as comprising the southeast quarter of the section, had been inclosed since 1852, and thus occupied by himself and his grantors. Plaintiff claimed that the north fence of defendant's inclosure was so far north of the line between the quarter sections as to include thirty-five or forty acres of the fractional northeast quarter.
The surveyor of the county was called by plaintiff as a witness, to establish his claim. He testified in substance that he first measured off to defendant one hundred and sixty acres as the southeast quarter, and gave what remained between that and the river to the defendant; that the line between the two tracts thus ascertained was inside defendant's field; that as much as thirty-five or forty acres of plaintiff's land is in defendant's field.
In detailing how this result was reached he stated that he found the government corners at the southeast and southwest corners of the section; that he ran a line north from the southeast corner of section 30, on the east side, eighty chains to a point; and from the southwest corner of the southeast quarter of section 30 he measured north eighty chains, on the west line of the quarter section to a point, and the line between the points he established as the true line between the southeast and the northeast quarters of the section. He also testified that there were twenty-nine chains between that line and the river.
At the close of all the evidence defendant requested the court (sitting as a jury) in substance, to declare the law to be that the true method was not used by the surveyor in ascertaining the line in dispute. This was...
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