Granby Mining & Smelting Co. v. Davis

• Decision Date: 21 May 1900
• Citation: 156 Mo. 422,57 S.W. 126
• Court: Missouri Supreme Court
• Parties: GRANBY MINING & SMELTING CO. v. DAVIS.

57 S.W. 126

156 Mo. 422

GRANBY MINING & SMELTING CO. v. DAVIS.

Supreme Court of Missouri, Division No. 2.

May 21, 1900.

EJECTMENT — ANSWER — ADMISSION — STIPULATION — ERROR — AMENDMENT AFTER VERDICT — BOUNDARY LINE — CORNER STONE — GOVERNMENT SURVEY — COUNTY SURVEYOR — SUBDIVISION OF SECTION — PARTY REQUESTING RESURVEY — ESTOPPEL — TESTIMONY — ADVERSE COMMENT — INSTRUCTIONS.

1. In ejectment, defendant filed a general denial, except that he admitted that he "was, and long had been, in possession," without saying of what. The case was tried on an issue as to what was the correct boundary line between the parties' lands. Plaintiff failed to move for judgment on the pleadings, and requested instructions submitting that issue to the jury. Held that, in view of the conduct of the parties, defendant's answer would not be construed as admitting that he had long been in possession of plaintiff's land, and hence a refusal to instruct for plaintiff on the pleadings was proper.

2. Where, at the trial of an ejectment suit, the parties, in order to narrow the issue for the jury, stipulated that they were the owners of adjoining quarter sections through mesne conveyances under the same railroad grant from the United States, and that they had long been in possession, each supposing that he occupied to the true division line, such stipulation will be construed as a submission to the jury of the issue as to the true boundary line, and hence is a waiver of a claimed admission in defendant's answer that he was in possession of plaintiff's land.

3. Where, in ejectment, defendant's alleged admission that he was in possession of the land sued for is waived by a stipulation at the trial that the issue as to the boundary line should be submitted to the jury, it is proper, after verdict for defendant, to permit him to amend his answer by striking out the words which plaintiff claimed constituted the admission; such amendment being in aid of the verdict.

4. Where, in ejectment, involving a controversy over a boundary line, the evidence shows that a stone was fixed by United States surveyors to designate a certain corner, and a witness who made a subsequent survey testifies that he often found discrepancies and differences arising from errors and poor surveys, and that his measurement from one corner of the section to the fixed stone was 17½ feet more than the government plat showed, it is proper to instruct that calls in field notes and surveys for fixed stones by which original corners were designated must prevail over calls for distances, if the two are inconsistent.

5. In ejectment, involving a controversy over a boundary line, an instruction that a certain corner, "as located by the government field notes, map, and survey in evidence," must be taken as unalterably fixed, is not erroneous, as placing a subsequent survey introduced in evidence on a par with the government survey; the latter being also in evidence in certified plat books and field notes.

6. It is proper to instruct, in ejectment, involving a controversy over a boundary line, that, if the jury find that a former county surveyor has found and fixed the center of the section as he was directed to do by statute, such corner so found by him is the true and legal center of the section.

7. In ejectment, involving a controversy as to a boundary line, it is proper to instruct that defendant might request a resurvey by the county surveyor, without estopping himself from insisting on the original corners if dissatisfied with the resurvey.

8. It is proper to refuse to comment adversely on a witness' testimony, in instructions; the weight of the testimony being for the jury.

Appeal from circuit court, Newton county; J. C. Lamson, Judge.

Action by the Granby Mining & Smelting Company against John B. Davis. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

John T. Sturgis, for appellant. Geo. Hubbert, for respondent.

GANTT, P. J.

This is an action of ejectment for a tract of land in Newton county, described by metes and bounds as follows, to wit: "Being a tract of land, one and one-half feet wide at the north end and two and one-quarter feet wide at the south end, off of the west side of the northwest quarter of the southeast quarter of section 12, township 25, range 31." The original answer is in these words: "Defendant, for answer, denies each and every allegation in the plaintiff's petition, except he admits that he is, and long has been, in possession." The cause was tried by the court and jury at the December term, 1896. Plaintiff was proceeding to put in its evidence of title, whereupon defendant's counsel suggested that they could save much time, and thereupon they mutually stipulated of record as follows: "It is admitted that the Granby Mining & Smelting Company is the owner of the northwest quarter of the southeast quarter of section 12, township 25, and range 31, and that John B. Davis is the owner of the northeast quarter of the southwest quarter of section 12, township 25, range 31, both claiming under the same railroad grant from the United States, by mesne conveyances, and each party has been occupying the respective tracts for a great many years, each supposing that he occupied to the true division line." Plaintiff then offered evidence to the effect that some time in July, 1896, Mr. Davis, the defendant, stated to Mr. Kingston, the superintendent of the plaintiff company, that the deputy county surveyor, McKee, had stated that the stone which marked the boundary line between the two tracts was 17½ feet too far west, and proposed to have the line surveyed. To this both sides assented, and thereupon the county surveyor, Patterson, was employed to locate the line, and he made his survey, and each paid one-half of the costs. There was much evidence tending to establish that the half-mile corner on the south line of section had been fixed by the United States surveyors in the original survey of this state. This corner was marked by a flint stone, 5 inches thick, 16 inches long, and 13½ inches wide. The new survey by Patterson indicated that this stone was 3 feet east of the center of said south line, measuring from east to west. These surveys furnished the foundation for this litigation. The accompanying plat will show the result of the surveys, and the claims of each. The establishment of the half-mile corner was the fact to be tried. The jury, by their verdict, found there was an original corner fixed by the surveyors of the United States government, and as defendant was not in possession of any of the N. W. ¼ of the S. E. ¼ of section 12, township 25, range 31, if the said flint rock was an original corner, the verdict was for defendant,...