Hamilton v. West

• Decision Date: 31 May 1876
• Citation: 63 Mo. 93
• Court: Missouri Supreme Court
• Parties: EDWARD W. HAMILTON & JOHN L. HAMILTON, Appellants, v. JOHN F. WEST & ALVINA B. WEST, Respondents.

63 Mo. 93

EDWARD W. HAMILTON & JOHN L. HAMILTON, Appellants,

v.JOHN F. WEST & ALVINA B. WEST, Respondents.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Buchanan Circuit Court.Ben. Loan, for Appellants, cited: St. Louis University vs. McCune, 28 Mo. 482, and cases cited; Kincaid vs. Dormey, 47 Mo. 337; Knowlton vs. Smith, 36 Mo. 507; Tamm vs. Kellogg, 49 Mo. 123.

Bennett Pike, for Respondents, cited: Tamm vs. Kellogg, 49 Mo. 123; Blair vs. Smith, 16 Mo. 278; Jackson vs. Ogden, 7 Johns. 242-5; Rockwell vs. Adams, 6 Wend. 467; 7 Cow. 761; 10 Wend. 104-109; Taylor vs. Zepp, 14 Mo. 482-90; Lindell vs. McLaughlin, 30 Mo. 33; Majors vs. Rice 57 Mo. 389.

HOUGH, Judge, delivered the opinion of the court.

This was an action of ejectment to recover possession of a strip of land seven feet wide, off from the south side of lot 9, block 64, in the original town of St. Joseph. The southern boundary of this strip, is the north line of lot 10, in the same block. The defendant relied upon the statute of limitations and an estoppel in pais.

Joseph Robidoux was the owner of both lots, as patentee of the land on which they were laid out, and in May, 1853, conveyed lot 9 to James Hamilton Jr., from whom plaintiffs acquired title prior to the institution of the present action. In April, 1853, Robidoux conveyed lot 10 to F. A. West, who was the husband of the defandant, Alvina, and father of the defendant John West, and they acquired their title from him. In 1853, or 1854, F. A. West erected a brick dwelling on lot 10, which extended some three or four feet on the strip in controversy, which has been since its completion, continously occupied by F. A. West, and the defendants. He also built, at the same time, on the north line of said strip, a brick wall, which has ever since been claimed by the defendants, and, prior to their possession, by F. A. West, as the northern boundary of their lot. Plaintiffs made no claim to the disputed ground, until about seven months before the institution of the present action, although they had lived in the city of St. Joseph for twenty years prior thereto.

Mrs. West testified that she did not know where the boundaries of lot 10 were, but that they had always claimed to the brick wall. In another portion of her testimony, referring to the strip n dispute, she said: “We always have claimed it.” Her son testified that they always claimed the brick wall as their boundary. The record is silent as to whether F. A. West knew where the northern boundary of lot 10 was, at the time he erected the house and constructed the wall.

It is contended by plaintiffs' counsel, that if he did not know where it was, and by mistake and in ignorance of the true line, located the wall on the plaintiff's land, then, although he and the defendants claiming under him, occupied and claimed the land up to such boundary, their occupation was not adverse. Plaintiffs' instructions to this effect having been refused by the court, they took a non-suit, and have brought the case here by appeal. As we will dispose of the case on the point thus raised, it will not be necessary to say anything on the question of estoppel.

A distinction has been maintained throughout the decisions of this court on the subject of adverse possession, in cases of unascertained boundaries, between the cases where possession of land belonging to one of two co-terminous proprietors, has been taken and held by the other in ignorance of the true division line, but with the intention of only claiming the land up to the true line, wherever it might be, and the case where such proprietor, in ignorance of the true line, but claiming a division wall or fence, erected...