Hines v. Ament

• Citation: 43 Mo. 298
• Parties: AARON HINES, Plaintiff in Error, v. ELIZABETH AMENT, Defendant in Error.
• Decision Date: 28 February 1869
• Court: United States State Supreme Court of Missouri

43 Mo. 298

AARON HINES, Plaintiff in Error,

v.ELIZABETH AMENT, Defendant in Error.

Supreme Court of Missouri.

February Term, 1869.

Error to Fifth District Court.

Strong & Chandler, for plaintiff in error.

I. The evidence on the part of plaintiff and defendant shows that plaintiff had title to the fence and land upon which it stood--having had adverse, exclusive, and uninterrupted possession thereof for seventeen years, and all the time claiming the same. If this proposition is true, defendant was a trespasser in taking the rails, and acquired no title. (R. C. 1855, ch. 191, § 1; 22 N. Y. 170; 1 A. K. Marsh. 460; 6 B. Monr. 463; 5 Pick. 131; 3 Met. 91; 11 Moss, 293.)

II. Replevin can be maintained for property severed and taken from the freehold. (13 Ill. 192; 15 B. Monr. 479; 1 Will. on Torts, 476, § 16.)

III. Even admitting that the land upon which the fence stood originally belonged to defendant, yet if she, as the evidence shows, permitted defendant to acquire title thereto, by the statute of limitations she is estopped from claiming the land and rails.

IV. If the land over which the fence was built belonged to defendant or her ancestor, was entered upon by plaintiff or his ancestor, and was fenced by plaintiff or his ancestor, and claimed as plaintiff's property for ten years or more, this act ousted defendant's possession and disseized her. (3 Met. 91, 102; 7 Wheat. 60; 5 Pet. 445; 4 Mas. 326; 3 Washb. Real. Prop., 3d ed., p. 142, § 43.)

V. If the fence was erected on defendant's land by mistake, and without the knowledge or consent of defendant, and was allowed to remain on defendant's land after the survey of 1851, with her knowledge, and plaintiff was allowed to use and claim the same as his own property, the fence remained plaintiff's property. (39 Maine, 519.) In such case the fence was not a fixture. (Greenl. Cr. 46.) Defendant shows by her evidence that she considered plaintiff the owner of the fence by giving him written notice to move it; and by giving this notice she is estopped from claiming the fence as her property.

Woodson, Vinyard, and Young, for defendant in error.

BLISS, Judge, delivered the opinion of the court.

The plaintiff replevied a lot of rails taken from his fence by the defendant, and, she not giving security, he retains the possession. The case was submitted to the judge in the Buchanan Circuit Court without a jury. Various declarations of law were asked by plaintiff and refused, and the court found for the defendant, and assessed as her damage the value of the rails.

It appears that the farms of plaintiff and defendant joined; that defendant's land next to plaintiff's was vacant, while the plaintiff's had been inclosed and occupied for about fifteen years. In 1851 the former owners of defendant's land procured a survey of the farm, and the dividing line ran some six feet upon plaintiff's inclosure, leaving his fence upon the land of defendant. The plaintiff moved in a part of his fence, but left most of it standing, to which no objection was made until 1864, when defendant notified him to move his fence, and shortly after hauled the rails to her house and piled them up. All the testimony is sent up, and we have the whole case before us.

The District Court affirmed the judgment of the Circuit Court. This is erroneous. It is unnecessary to give any opinion upon the declaration of law asked upon the questions of adverse possession and the right of the plaintiff to all the land within his inclosure. The fence was placed upon the defendant's land originally by mistake, and remained there by...