Harrison v. Pounds

• Decision Date: 03 July 1905
• Citation: 88 S.W. 713,190 Mo. 349
• Parties: HARRISON v. POUNDS.
• Court: Missouri Supreme Court

88 S.W. 713

190 Mo. 349

HARRISON v. POUNDS.

Supreme Court of Missouri, Division No. 2.

July 3, 1905.

1. APPEAL—REVIEW—EVIDENCE.

The ruling of the trial court on a demurrer to the evidence will not be reviewed unless all the evidence is before the Supreme Court.

2. SAME—CONFLICTING EVIDENCE.

It is not the province of the Supreme Court to settle the weight of conflicting evidence.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by Judson Pounds against Josiah R. Harrison. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Byrns & Bean, for appellant. Kleinschmidt & Reppy, for respondent.

GANTT, J.

This is an action of ejectment, originally brought to recover 16 acres of land in the north part of United States survey No. 872 in Jefferson county of this state, and was a tract of land between where Big river now runs and where it formerly ran according to the field notes of the United States government survey made by Philip Reilly, county surveyor, whose testimony discloses that he never found an original corner. After the evidence had been heard, plaintiff filed an amended petition, to conform, as he states, to the evidence, in which he sues for one acre, a part of United States survey No. 872, and lying on the north side of said survey, and bounded on the north by the old bed of Big river, on the west by a fence on the east side of a tract owned by plaintiff and occupied by William May. Ouster was laid as of July 2, 1893. The answer was and is a general denial. The cause was tried to the court without a jury, and the finding and judgment was for defendant, to reverse which defendant prosecutes this appeal.

The court gave three declarations of law prayed by plaintiff, and gave none for defendant. The sole ground of error alleged is that the circuit court erred in not rendering judgment for plaintiff upon the undisputed and uncontradicted evidence. This insistence places the burden on this court of investigating the evidence. This controversy is between adjoining proprietors. Plaintiff owns land in survey No. 872 on the south side of the Big river as it originally ran, and defendant's lands lie in survey No. 3,195 on the north side of said river; that is to say, the plaintiff and defendant are opposite riparian owners. The evidence tends to establish that about 12 or 13 years ago there was a sudden change in the course of the river, caused by the falling of large trees in it, and cutting off what the witnesses called "Harrison's Island," which is north of the present bed of the river. Various if not all the material witnesses appear to have testified with reference to certain plats which were in evidence but which are not set forth in or attached to the abstracts of the record before...