Grant v. Moon

• Citation: 128 Mo. 43,30 S.W. 328
• Parties: GRANT v. MOON.
• Decision Date: 26 March 1895
• Court: Missouri Supreme Court

30 S.W. 328

128 Mo. 43

GRANT v. MOON.

Supreme Court of Missouri, Division No. 1

March 26, 1895.

DEED — CONSTRUCTION — FEE IN HIGHWAY.

Where the description in a deed conveying land by metes and bounds carries the line along the side of a highway, though not mentioning it, and the grantor owns the fee to the center of such highway, a finding that a fee in the land to the center of the highway, subject to the public easement therein, passed to the grantee, in the absence of words in the deed showing a different intention, will not be disturbed.

Appeal from circuit court, Greene county; James I. Neville, Judge.

Action by A. R. Grant against J. R. Moon. From a judgment for defendant, plaintiff appeals. Affirmed.

L. G. Lydy and Heffernan & Buckley, for appellant. H. E. Howell, for respondent.

BRACE, C. J.

This is an action in ejectment for a small parcel of land in the city of Springfield, contained within the following metes and bounds: "Beginning at a point 11 rods and 9 links south of a point 28 feet southwest of the northeast corner of the southwest quarter of section 23, township 29, range 22; thence south, 41½ degrees west, to a point on a straight line running due north and south, 160 feet west of said beginning point; thence south 41 feet; thence north, 41½ degrees east, to a point due south of said beginning point; thence north 41 feet, to said beginning point." The answer was a general denial. The case was tried by the court without a jury. The plaintiff asked the court to declare the law to be "that on the evidence the plaintiff is entitled to recover the land in controversy, provided the court finds from the evidence that the defendant was in possession of the property at the time of the institution of this suit," which the court refused to do. No other declarations of law were asked or given. The court found for the defendant, and the plaintiff appeals. It appears that the parties are coterminous proprietors. The evidence tends to prove that the land in question was formerly within the lines of an old public road, 60 feet wide, running from Springfield, Mo., to Fayetteville, Ark., the use of which as a public road had been abandoned for some years prior to the institution of this suit; that the conveyances under which both parties claim are by metes and bounds; that the land in question is in the possession of the defendant, and within the lines of the plaintiff, according to the description of the courses and distances in the deeds on which he claims title. The claim of the defendant is that the south line of his tract is coincident with the north line of the old road, and, the road having been abandoned, his line is extended to the middle of the old road, and, thus extended, includes the land in controversy. The plaintiff concedes that the evidence shows that the defendant's land at its southwest corner touches the line of the old road, but insists that the evidence shows that his line, "when it leaves that point running northeast, leaves the line of the old road, and does not touch it any more, but varies therefrom a small but assured distance, the line of divergence increasing as it progresses eastward." Whether the weight of the evidence supports this view of the fact we are not called upon to say. The court must have found that this line of the defendant and the line of the old road were practically coincident, and that the defendant's land for the length thereof abutted on the road, and we cannot say there was no...