Goltermann v. Schiermeyer

• Decision Date: 02 July 1892
• Citation: 19 S.W. 484,111 Mo. 404
• Parties: Goltermann v. Schiermeyer, Appellant
• Court: Missouri Supreme Court

19 S.W. 484

111 Mo. 404

Goltermann v. Schiermeyer, Appellant

Supreme Court of Missouri

July 2, 1892

Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed and remanded.

Theodore Bruere and T. F. McDearmon for appellant.

(1) The true division line between the north half and the south half of section 31, township 46, range 1, east, is the line claimed by defendant, established by Arnold Krekel, county surveyor of St. Charles county, in 1847, and running from the original United States quarter section corner in the east line parallel with the southern line of said section, to a corner in the west line thereof. The court, therefore committed error in giving instructions, numbered 3, 4, 5 and 7, asked by plaintiff, and refusing instructions, numbered 9 and 10, asked by defendant. Revised Statutes of the United States, sec. 2396; Knight v. Elliott, 57 Mo. 322; Revised Statutes, 1889, sec. 8328; Revised Statutes, 1879 sec. 7398; Jacobs v. Moseley, 91 Mo. 457. (2) The court gave improper instructions at the request of plaintiff and refused to give proper instructions at the request of defendant, defining adverse possession. Luper v. Baker, 68 Mo. 400; Tayon v. Ladue, 33 Mo. 205; Schultz v. Lindell, 30 Mo. 310; Draper v. Shoot, 25 Mo. 197; Prewitt v. Burnett, 46 Mo. 372; Fugate v. Pierce, 49 Mo. 441; Music v. Barney, 49 Mo. 458; Bowman v. Lee, 48 Mo. 335; Crispen v. Hannavan, 50 Mo. 550; Bartlett v. Donoghue, 72 Mo. 563; Cole v. Parker, 70 Mo. 372; Knowlton v. Smith, 36 Mo. 507; Thomas v. Babb, 45 Mo. 384; Tamm v. Kellogg, 49 Mo. 118; Walbrunn v. Ballen, 68 Mo. 164; Handlan v. McManus, 100 Mo. 124; Atchison v. Pease, 96 Mo. 566; State v. Whelehon, 102 Mo. 17. (3) The court gave improper instructions for the plaintiff, and refused proper instructions for the defendant, on the question of an agreed line. Turner v. Baker, 64 Mo. 218; Taylor v. Zepp, 14 Mo. 488; Blair v. Smith, 16 Mo. 281; Acton v. Dooley, 74 Mo. 63; Allen v. Sales, 56 Mo. 28; Hamilton v. West, 63 Mo. 93; Thomas v. Pullis, 56 Mo. 211; Dolde v. Vodicka, 49 Mo. 98; Lindell v. McLaughlin, 30 Mo. 28; Soward v. Johnston, 65 Mo. 102; Melton v. Smith, 65 Mo. 315; Slagel v. Murdock, 65 Mo. 522; Lemmon v. Hartsook, 80 Mo. 13; Dibble v. Rogers, 13 Wend. 536; Rockwell v. Adams, 6 Wend. 467; McCormack v. Barnum, 10 Wend. 104; Jackson v. McConnell, 12 Wend. 421. (4) The plaintiff was estopped by his acts and the acts of those under whom he claims from denying the correctness of the line surveyed and established by Arnold Krekel in 1847, and the courts should have so held and taken the case away from the jury; or at least given defendant's instruction, numbered 13, which presented this question to the jury. Lemmon v. Hartsook, 80 Mo. 13; Majors' Heir v. Rows, 57 Mo. 384; Cooper v. Verra, 59 Cal. 282; King v. Mabrey, 3 Lea (Tenn.) 237; Davis v. Lodge, 46 Vt. 655; Johnson v. Brown, 63 Cal. 391; Pierson v. Mosher, 30 Barb. 81; Baldwin v. Brown, 16 N.Y. 359; Spaulding v. Warren, 25 Vt. 316; Smith v. McAlister, 14 Barb. 404; Case v. Trapp, 49 Mich. 59. (5) The court erred in permitting the stenographer's notes of the defendant's testimony at a former trial to be read in evidence. Leeser v. Boekhoff, 38 Mo.App. 445; Pennsylvania Co. v. Marion, 123 Ind. 415; Hammond v. Dyke, 42 Minn. 273. It appears from the record that the judgment as entered up is erroneous, and should be set aside.

Mudd & Mudd, H. C. Lackland and C. W. Wilson for respondent.

(1) Plaintiff's instructions, numbered 1, 2, 3, 4, 5 and 6, in relation to the location of the dividing line between the northern and southern halves of section 31, correctly declare the law. They direct the location of the quarter section corner, and the dividing line between the half sections, in exact accordance with the regulations of the United States land department and of the United States statutes. That is to say, so as to suit the calculations of the areas of the quarter sections adjoining the township boundaries as expressed upon the official township plat. United States Revised Statutes [Ed. 1878] sec. 2396; Public Domain (1883), p. 673, sec. 6, last clause. The laws of the United States and regulations of the land department must govern in the case. Knight v. Elliott, 57 Mo. 317; Lemmon v. Hartsook, 80 Mo. 19. (2) Plaintiff's instructions, numbered 9 and 10, are correct declarations of the law of the case. Schad v. Sharp, 95 Mo. 574; Jacobs v. Moseley, 91 Mo. 457; Keen v. Schnedler, 92 Mo. 516; University v. McCune, 28 Mo. 482; Thomas v. Babb, 45 Mo. 387; Crawford v. Ahrnes, 103 Mo. 88; Knowlton v. Smith, 36 Mo. 507. (3) First. Plaintiff's instructions, numbered 11, 12, 13, 14, 15 and 16, all on the subject of adverse possession, or the application of the statutes of limitations to the case, correctly declare the law of the case. Keen v. Schnedler, 92 Mo. 516; Doan v. Sloan, 42 Mo. 106-112; Pike v. Robertson, 79 Mo. 618, 619; Bradley v. West, 60 Mo. 33, 37, 38; Knowlton v. Smith, 36 Mo. 507-514; Angell on Limitations [5 Ed.] sec. 390, p. 387; Degraw v. Taylor, 37 Mo. 310, 311. Second. The law presumes that the party in possession holds in subserviency to the rights of the true owner. The burden is upon him, who claims title by adverse possession, to prove his title. The character of his possession is always determined by the intent with which he held. Knowlton v. Smith, 36 Mo. 514; Cutter v. Waddingham, 22 Mo. 267; Bradley v. West, 60 Mo. 41; Crawford v. Ahrnes, 103 Mo. 88; Thomas v. Babb, 45 Mo. 387. When the true owner is in actual possession of a portion of his land, nothing short of actual occupation (by inclosure or cultivation) can oust him, even though the adverse claimant has color of title. Bradley v. West, 60 Mo. 40, 41. Possessio pedis is essential in such a case. Griffith v. Schwenderman, 27 Mo. 412; Schultz v. Lindell, 30 Mo. 310, 316, 317; Crispen v. Hannavan, 50 Mo. 536; St. Louis v. Gorman, 29 Mo. 593. (4) First. Plaintiff's instructions, numbered 17 and 18, are proper declarations of law on the subject of an agreed line. An agreed line can be established only by agreement between the adjoining proprietors. These instructions give no directions as to the character of evidence that is required to prove the agreement. They do not require positive and direct evidence of the agreement. Jacobs v. Moseley, 91 Mo. 462, 463; Schad v. Sharp, 95 Mo. 578, 579. Second. Really there was no evidence in the case to justify the submission of this issue to the jury, and plaintiff objected to its being dragged into the case. Third. But the defendant having asked the court for instructions submitting the question to the jury will not be heard to complain. Keen v. Schnedler, 92 Mo. 516-526; Crutchfield v. Railroad, 64 Mo. 255; Davis v. Brown, 67 Mo. 313; McGonigle v. Dougherty, 71 Mo. 259, 265; Bank v. Hammerslough, 72 Mo. 274; Smith v. Calligan, 74 Mo. 388; Bettes v. Magoon, 85 Mo. 580-586. The court properly refused the instructions asked by the defendant that were refused. (5) The court properly allowed the official stenographer, Robinson, to testify as to the statements made by the defendant when on the witness stand on the former trial of the cause. It was competent for the plaintiff to prove any admission of the defendant against his own interest. The witness testified that his report of the defendant's testimony was correct. Bogie v. Nolan, 96 Mo. 90; Davis v. Plover, 96 Mo. 401; Priest v. Way, 87 Mo. 32, Judge Sherwood's dissenting opinion and authorities there cited; Pomeroy v. Benton, 77 Mo. 82; State v. Able, 65 Mo. 357, 371; State v. Glahn, 97 Mo. 679, 694. (6) There is no estoppel in pais in this case, and appellant should not be heard on this issue at this date. First. There is no evidence whatever to base an estoppel on. Both parties had equal means of knowledge. Second. The issue was not raised, either in the pleadings by instruction or otherwise at the trial of the cause. It must be pleaded in the answer. 1 Greenleaf on Evidence, secs. 22, 23; St. Louis v. Lumber Co., 98 Mo. 613, 617; Prior v. Lambeth, 78 Mo. 538, 546; Kincaid v. Dormey, 51 Mo. 552; Bales v. Perry, 51 Mo. 449, 452; State v. Laies, 52 Mo. 396.

Black, J. Sherwood, C. J., Brace, J., and the writer are of the opinion that the judgment should be reversed, and Thomas, J., concurs in this result; while Barclay, Gantt and Macfarlane, JJ., are of the opinion that the judgment should be reversed and the cause remanded. Black, Brace and Thomas, JJ., adhere to their former opinion that the judgment should be one of reversal only.

OPINION

In Banc.

Black J.

This is an action of ejectment for sixteen and ninety-five hundredths acres of land in section 31, township 46 north, range 1 east, of the fifth principal meridian in St. Charles county. The controversy arises out of a difference as to the true line dividing the north half and the south half of that section.

Earnest Goltermann obtained two patents from the United States dated in 1835 and 1837. In one, the land conveyed is described as lot 2 of the northwest quarter of said section containing one hundred and three and twenty-seven hundredths acres "according to the official plat of the survey of said land, returned to the general land-office by the surveyor general;" and in the other, the land is described as lot 1 in the northwest quarter and the west half of the northeast quarter of said section, containing one hundred and sixty acres, with a like recital as to the official plat. Goltermann died in 1852, leaving the plaintiff as one of his heirs. Plaintiff acquired the interest of the other heirs in the land, except a part north of the line in dispute. He also put in evidence a survey made by county surveyor Jenkins, pending this suit, and a copy of the plat of the entire township as...