Hahn v. Cotton
| Decision Date | 01 December 1896 |
| Citation | 37 S.W. 919,136 Mo. 216 |
| Parties | Hahn v. Cotton et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. C. A. Anthony, Judge.
Affirmed.
H. T Alkire and S. F. O'Fallon for appellants.
The plaintiff and defendant having entered into a written contract whereby they mutually agree upon a line between their adjoining lands which line had been plainly marked out by the surveyor, and the location of said line well known to both parties, and they both took possession under the agreement and they are both bound by it, and even if there had been a mistake made by a third party in running the line neither party can afterward repudiate the contract and claim to the true line. This land in controversy was made land, and the river having changed its channel the surveyor attempted to run the lines so as to give each owner a proportionate share of river front. The lines were attempted to be run by the surveyor in accordance with the rule of law laid down by the courts for the division of accreted land. This was something the owners knew nothing about, and as there were no corners and the lines run diagonally through the land, no one could tell from the plats whether the line as marked out was the same as shown on the plat or not, as the direction only varied a few degrees. The intention of the parties, drawn from the contract, was clearly to agree on the land, "as the same was recently surveyed and set off by William M Morris, county surveyor of Holt county." This is the controlling clause in this contract, as it referred to land as actually surveyed and set off, and the lines marked out by the parties themselves. Schad v. Sharp, 95 Mo. 79; Acton v. Dooley, 74 Mo. 63; Jacobs v Mosely, 91 Mo. 457. The appellant contends that the judgment was for the wrong party. The surveyor testified that when he got home he found his error before he made the plats, that the plats show where the lines have been run, and that he enclosed a plat and information in regard to the error to each party. If both parties knew of the error and knew that the line as surveyed by him was not the true line and afterward agreed on the line, the agreement is binding on each; and if both were ignorant of the mistake, then the agreement is binding and can not be repudiated by either party.
T. C. Dungan for respondent.
(1) The declaration of law given on behalf of plaintiff was right. It was the duty of the court to construe the contract and the effect thereof. The contract entitled plaintiff to the possession of all the right, title and interest that the defendant had, at that time, in the land described, and to each and every part thereof, and it can make no difference whether said defendant had previously acquired title thereto by accretion, adverse possession or otherwise, or that he only had the possession thereof -- nor could any pretended mistake or misunderstanding between the parties thereto be rectified under the pleadings and issues made, and evidence adduced in this case. (2) The court committed no error in modifying defendant's third declaration of law. Nor do the facts, as shown by the evidence, make a case wherein the defendant's declarations of law are applicable, and they might have been refused without error. (3) There was no agreement shown to exist at any time, between the parties, as to any division line, except that contained and agreed upon in the written contract. (4) If the land was a common accretion and the surveyor attempted to and did survey, divide and plat same in accordance with the rule of law laid down by the courts, for the division of accreted lands, as claimed by appellant, and which seems to be the fact, and the defendant found that in such division some of his improvements were upon the portion falling to plaintiff, that would show a good reason and motive for the agreement, and the intention of defendant to turn over the possession to the plaintiff, of her legal or equitable portion as set off and platted, upon her paying him the value of the improvements. (5) The intention of the parties to be drawn from the contract was not to agree upon any partial, preliminary or random survey as claimed by appellant, but to an actual completed set-off, and survey, as designated on a plat made by said surveyor of Holt county recently, and which the evidence showed had been sent to, and received by each of the parties showing number of acres, corners, courses and distances of each one's lands, so surveyed and set off. The cases cited by appellant, if applicable at all in any way, tend to sustain respondent's case. Knapp v. Publishers, 127 Mo. 72. (6) The real ground of action is for the recovery of possession and the question of damages and rents and profits is merely an incidental matter. R. S. 1889, secs. 4626, 4631, 4633, 4638; Sedgwick & Wait, Trial of Title to Land, secs. 454, 650, 651. Under the pleadings and the evidence adduced, plaintiff was entitled to some damages, rents, and profits, and if either are excessive, but no other error appears, this court may reduce the damages, or allow plaintiff to remit such excess. Meyers Tailoring Co. v. Keeley, 58 Mo.App. 497; Burdict v. Railroad, 123 Mo. 222; McQuiddy v. Ware, 67 Mo. 74; State ex rel. v. Hope, 121 Mo. 41; Cook v. Railroad, 63 Mo. 402. Where the verdict is for the right party on the whole case, this court will not reverse and remand. Orth v. Dorschlein, 32 Mo. 366; Garesche v. Deane, 40 Mo. 168. (7) It is clearly within the power and province of this court to affirm, or give such judgment as the trial court ought to have given in this case, and not reverse same on the question of monthly rents and profits alone, because the record fails to show the evidence, or the admissions upon which the court acted in finding same. Sec. 2303, R. S. 1889; Scott-Force Hat Co. v. Bank, 127 Mo. 392; Meyer v. Orynski, 25 S.W. 657; Fraize v. Commonwealth, 30 S.W. 1014; Elliott, App. Prac., sec. 580; Jackson v. Hardin, 83 Mo. 175. If error occurred in rendering judgment for rents and profits, in the absence of testimony on the subject, the supreme court may correct the same on appeal, upon an offer of a remittitur as tendered herein. Franklin v. Haynes, 119 Mo. 571; Warder v. Henry, 117 Mo. 530; Pierce v. Lowder, 50 Mo.App. 25; Miller v. Hardin, 64 Mo. 547; Slattery v. St. Louis, 120 Mo. 183; Railroad v. Viney, 30 S.W. 252; State ex rel. v. Sanford, 127 Mo. 373.
This is an action of ejectment, begun July 21, 1892, by a petition in the usual form. The answer is a general denial. The case was tried by the court, a jury having been waived. There was judgment for plaintiff, and an appeal was taken therefrom in due course. The dispute concerns the division of certain lands that have formed as accretions upon the riparian property of Mrs. Hahn, the plaintiff, and of Mr. Cotton, the chief defendant. It was admitted at the trial that the other defendant, Mr. Varvel, a tenant of Mr. Cotton, was in possession of the piece in dispute which comprises fifteen acres in Holt county. The tenant need not further be mentioned.
Plaintiff and defendant own adjoining farms on the old Missouri river bank. The lands of defendant are above and below those of plaintiff on the original shore as surveyed by the government engineers. Defendant had fenced the disputed land, had built a house upon it, and claimed it for a long period; but in 1890 plaintiff began to insist on obtaining that part of the accretion lying in front of her own undisputed tract, bordering on the old river. At this stage of the controversy, defendant engaged the county surveyor to survey all of the accretions and to apportion them properly so far as they were affixed to the undisputed parcels of plaintiff and defendant respectively. It was mutually understood that this should be done on joint account. So far there is no conflict in the evidence.
Plaintiff offered testimony tending to show these additional facts:
The surveyor in May, 1890 (under his aforesaid engagement by defendant) made a practical survey of all the accretions. He set stakes and marked trees to show the dividing lines as first traced by him. Both parties were present at that time.
The mode of apportionment followed by the surveyor was in brief this: He fixed points on the new river bank so as to divide the frontage thereon in the exact ratio of frontage of the several tracts of the interested proprietors on the old shore before the disputed accretion formed thereon; then he drew straight lines from the points so fixed to the relative division points between said proprietors' tracts on the old shore, following the general rule or theory which was approved in Deerfield v. Arms (1835) 17 Pick. 41. (It will not be necessary to decide whether that rule was justly applicable in the circumstances of the case at bar.)
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