Harper v. Morse

• Decision Date: 27 February 1893
• Citation: 21 S.W. 517,114 Mo. 317
• Parties: HARPER v. MORSE et al.
• Court: Missouri Supreme Court

21 S.W. 517

114 Mo. 317

HARPER v. MORSE et al.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

ADVERSE POSSESSION — WHAT IS — EVIDENCE — RES GESTAE — INSTRUCTIONS.

1. Parties are generally bound on appeal by the positions taken by them in the trial court.

2. What the components of adverse possession are is a question of law; their existence, usually, is one of fact.

3. Several phases of the Missouri law of adverse possession discussed.

4. Title by adverse possession cannot originate between landlords of adjacent tracts of land, in possession of the same tenant, without notice of the adverse claim brought home to the other proprietor.

5. Certain declarations by one in possession of real property, concerning the extent and nature of his claim and occupancy, held admissible as res gestae.

(Syllabus by the Judge.)

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Ejectment by one Harper against J. F. Morse and others. Plaintiff had judgment, and defendants appeal. Affirmed.

W. W. Fry, for appellants. Barker & Shackleford, for respondent.

BARCLAY, J.

This is an action in ejectment, begun August 20, 1888, for a certain tract of land in Montgomery county. The petition makes the usual allegations of plaintiff's ownership, etc., of a specified quarter section, and then charges that defendants entered upon and "took possession of the strip of land on the western edge or side of said southwest quarter of said section 5; said strip so taken possession of by said defendants being a strip the entire length of said southwest quarter of said section 5, and of about the average width of 200 feet, and being a part of said southwest quarter, "etc., with the usual formal allegations following. The defendants are the adverse claimants of the land and their tenant is in possession. Their answer is a general denial. The cause was tried by Judge Hughes and a jury. The plaintiff exhibited a clear paper title to the strip of land in dispute. The defense was adverse possession for the period of limitation. The evidence of both parties showed that the land in suit had been within an inclosure (made by defendants) during a much longer period than 10 years. The real issue was as to the nature of the claim by defendants to the land so inclosed. They asserted it to be adverse, etc., while plaintiff insisted that it was friendly, and by mistake as to the true line. There was testimony sustaining both contentions. The jury found in favor of the plaintiff, and the court rendered judgment accordingly. Defendants then took this appeal after the usual steps therefor. Several objections are made to particulars in the proceedings on the circuit.

1. Defendants criticise the first instruction given for plaintiff, which told the jury that if they believed from the evidence "that defendant or his landlord first fenced the land, not knowing where the true line was, but only intending to hold to the true line when ascertained, and never intended to hold all of the land first fenced, then, until he removed his fence, and put it upon a line he claimed as the true line, the statute of limitation did not begin to run." No doubt this instruction is faulty as an abstract statement of the law. A fence is not necessary to advertise adverse possession. The latter may stop short of a fence, and yet be maintained in some circumstances, as far as it really reaches. But nevertheless the instruction was not erroneous as applied to the case in hand, for the facts therein recited after the word "until" presented the only showing made by defendants on that subject, as may be plainly seen from their own instruction numbered 2, likewise given by the court, viz.: "(2) The court instructs the jury that if the defendant had had the line between his land and section five surveyed, and the stones set showing said line, and that defendant inclosed the land in question with a fence, and occupied said land, and cultivated it, and kept it fenced, for ten successive years immediately prior to the institution of this suit, and that defendant surveyed, fenced, occupied, and cultivated said land with the intention of claiming title to said land up to the line surveyed and established by W. H. Morse, then the verdict must be for defendant." The latter instruction shows the theory of the case which defendants advanced, and plaintiff's instruction cannot be invalidated for conforming thereto. Generally speaking, parties are bound by the positions they assume upon the trial. The court commits no error in so framing its instructions as to sharply present the points of real controversy, as developed by the course of the proceedings, without indulging in abstractions outside the facts in issue.

2. There is complaint of plaintiff's fifth instruction, because it fails to define "adverse possession." Its terms are these, viz.: "(5) The court instructs the jury that the verdict must be for the plaintiff unless the jury believe from the evidence in the case that defendant has acquired the title to the strip of land by adverse possession thereof, as explained and defined in other instructions." It was...