Hedges v. Pollard

• Decision Date: 31 March 1899
• Citation: 50 S.W. 889,149 Mo. 216
• Parties: HEDGES et al. v. POLLARD et al.
• Court: Missouri Supreme Court

50 S.W. 889

149 Mo. 216

HEDGES et al. v. POLLARD et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1899.

EJECTMENT — PLEADING — EVIDENCE — ADVERSE POSSESSION — BOUNDARIES.

1. In ejectment, evidence of title by limitations is admissible under a general denial.

2. Where one of two adjoining landowners erects a fence, with the consent of the other, on what is supposed by both to be the true dividing line, the other is not estopped from claiming to the true line, when it is ascertained.

3. In an action of ejectment, it appeared that plaintiff and defendant owned adjoining tracts of land; that the land was surveyed in 1875; that defendant then went into possession of his tract, and erected a fence on what was by both parties supposed to be the dividing line; that both parties occupied the respective tracts up to such fence until 1890, when a new survey was made, locating the dividing line on a part of defendant's land; that a resurvey was made in 1892, by the county surveyor, which agreed with the survey of 1890; and that defendant, though consenting to have such survey made, refused to give up the land claimed. Held, that plaintiff had not shown that defendant fenced and occupied the land up to the fence with an intention to hold it only until the true line was ascertained, but that his possession was adverse, and had ripened into title.

4. Rev. St. § 6768, providing that possession, under color of title, of a part of a tract of land, in the name of the whole tract claimed, and exercising, during such possession, the usual acts of ownership over the whole, is deemed a possession of the whole, is not applicable to interlapping surveys, forming boundaries between adjacent proprietors.

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

Ejectment by Catherine Hedges and others against John W. Pollard and others to recover about 60 acres of land in Lincoln county. From a judgment in favor of plaintiffs, defendants appeal. Reversed and remanded.

Martin & Woolfolk, for appellants. Norton, Avery & Young, for respondents.

MARSHALL, J.

1. This controversy arises out of a difference between the surveys made by F. W. Rohland, in 1846, and by John F. Wilson, made in 1875, and those made by W. G. Seaman, in 1890, and by F. D. Brown, in 1892, as to the proper dividing line between United States survey 757, in fractional section 18, township 48, range 3 E., and fractional sections 7 and 12 of the same township and range. If the surveys made in 1846 and 1875 are correct, the defendants have title; and, if those made in 1890 and 1892 are correct, the plaintiffs have title, and are entitled to recover, unless the defendants have acquired title by limitation. United States survey 757 was confirmed to Jonathan Woods in 1811. Prior to his death, in 1846, Ira Cottle had acquired title thereto. After his death the land was platted and partitioned, and lot 4, containing 960 acres, was set off to Harriet Cottle. She died some time prior to 1875, and her property was platted and partitioned, and lot 1, containing 166.80 acres of this partition, was assigned to L. B. Cottle and R. A. Pollard, and lot 2, containing 351.80 acres, was purchased at the partition sale by the defendants John W. Pollard and L. B. Cottle, and in 1876 the defendant John W. Pollard purchased the interest of R. A. Pollard in lot 1. Sections 7 and 12 of township 48, range 3 E., which plaintiffs own, adjoin survey 757 on the north, and survey 524 adjoins survey 757 on the west; the dividing line beginning at the Cuivre river, and extending, on a straight line, in a northwestwardly direction. Immediately after defendants acquired said lots 1 and 2, they took possession thereof, and fenced them, except about 10 or 15 acres in the northeast corner, which was covered by a portion of Brown's Lake, which was fenced in 1886 or 1887, and a small triangle at the northwest corner, caused by running the west line of survey 757 due west from the Cuivre river and then northwest, instead of towards the northwest, all the way from the river; thereby leaving a triangle between the west line of survey 757 and the east line of survey 524, no part of which, however, was in sections 7 and 12, unless the north line of survey 757 extended over the south line of sections 7 and 12. Defendants remained in undisputed possession from 1875 to 1892, cultivated all that was arable, and paid taxes on the whole of it. The plaintiffs and their ancestors lived on their land in sections 7 and 12, saw defendants erect the dividing fence between their respective lands in 1875, saw the acts of ownership exercised by defendants over the whole of the land claimed and cultivated by defendants, believed that the land belonged to defendants, never asserted any claim to it until after the surveys made by Brown and Seaman, in 1890 and in 1892, and then claimed the 60 acres here in controversy, upon the theory that the Brown and Seaman surveys established the correct dividing line, instead of those made by Rohland and Wilson, and that, as they and defendants had been claiming only to what they both believed was the true line, defendants' possession had never been adverse, and hence they had acquired no title by limitation. Survey 757 was located and surveyed long before the lands around it (including sections 7 and 12) were sectionized. Brown made his plat from notes, and not from surveys, but he did survey the land. Brown made the survey contain 635 acres, whereas that survey, as confirmed to Jonathan Woods, contained 640 acres. All the surveyors seem to have taken the river at the southwest corner of the survey as their initial point. Brown testified that when he made the survey, in 1892, there were "some indications of banks washing away." He also said that the "field notes call for east line, 71 chains. Wilson and Rohland ran it 75 chains, a difference of 4 chains. Rohland's plat of Ira Cottle partition makes west line 39.64. I found it to be 34 chains. This corresponds with distance given on east line. Wilson's survey followed Rohland's." Seaman testified to substantially the same thing; that is, Brown and Seaman make survey 757 four chains shorter from south to north than Rohland and Wilson make it; and Brown says that the field notes of the original survey made by Andrew Finly called for the east line to be 71 chains, whereas Rohland and Wilson made it 75 chains. Plaintiffs offered, but afterwards withdrew, the Finly survey, so that there remains only Brown's statement of what it did call for, as the length of the east line. Neither party offered any testimony as to the true southern boundaries of sections 7 and 12, and, as the plaintiffs' land lies wholly in those sections, they have no title, unless the southern line of those sections and the northern line of survey 757 are coincident. Nor have they any title to the four chains difference between the Rohland and Wilson surveys and those of Seaman and Brown, unless such excess diminishes the land properly belonging to sections 7 and 12. In the absence of such showing, it cannot be said, as a matter of law, that the excess belongs to the owners of land in sections 7 and 12, as the court instructed was the legal effect. Defendants may have all the land called for by survey 757, and plaintiffs may have all the land called for by the surveys of sections 7 and 12, and, if there are 60 acres intermediate between the true southern lines of sections 7 and 12 and the true northern line of survey 757, it would not follow, as the lower court held, that they would belong to the plaintiffs, and not to the defendants. It is true that Brown draws the conclusion, from the difference in the surveys, that these 60 acres lie in sections 7 and 12, and not in survey 757; but this is only a conclusion, and not testimony of a fact, especially as he does not testify that he ever surveyed sections 7 and 12, or that he knows anything about their true southern line. However, both parties tried the case below upon the theory that sections 7 and 12 and survey 757 adjoin, and hence this court will treat such to be the fact. Taking the river at the southwest corner of survey 757 as the initial point, and 34 chains as the proper length of the west line of the government survey, it follows that the Rohland and Wilson surveys, which called for 39.64 chains, made the west line 5.64 chains too long; and, assuming the southern lines of sections 7 and 12 and the northern line of survey 757 to be coincident, it follows that survey 757 overlaps sections 7 and 12 at the northwest corner 5.64 chains. On the same basis and assumption, survey 757 overlaps sections 7 and 12 at the northeast corner 4 chains. This is the substantial result of the showing of both parties, and it results that the legal title to this overlapping portion has been and is in the plaintiffs and their grantors, and not in defendants.

2. The plaintiffs having the legal title are entitled to recover, unless the defendants have acquired title by limitation. There is no plea of the statute of limitations in the answer. There was a plea, in the nature of an estoppel, that plaintiffs and their grantors saw defendants erect the dividing fence, and made no objection to its location, and that they knew defendants had placed the division fence on the line fixed by the plat in partition of the Harriet Cottle estate, and consented and acquiesced therein. This defense was stricken out on motion of plaintiffs, and defendants excepted. The action of the court was in conformity to the ruling in Goltermann v. Schiermeyer, 125 Mo. 291, 28 S. W. 616. Although there was no proper plea of the statute of limitations, proof of title by limitation was admissible under the general denial, because this is an action in ejectment. Bird v. Sellers, 113 Mo., loc. cit. 588, ...