La Hue v. Bungenstock

• Decision Date: 05 March 1923
• Docket Number: No. 23060.,23060.
• Citation: 297 Mo. 577,249 S.W. 402
• Parties: LA HUE v. BUNGENSTOCK.
• Court: Missouri Supreme Court

249 S.W. 402

297 Mo. 577

LA HUE v. BUNGENSTOCK.

No. 23060.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Action by George La Hue against D. W. Bungenstock. Judgment for plaintiff, and defendant appeals. Affirmed.

Randolph & Randolph, of St. Joseph, and Lee Mullins, of Rockport, for appellant.

Hunt, Bailey & Hunt, of Rockport, for respondent.

BROWN, C.

This is ejectment for the recovery of certain lands in Atchison county alleged to be the property of the plaintiff. The plaintiff's second amended petition, upon which the cause was tried, is, omitting formal parts, as follows:

"That he is the owner and possessed in fee and entitled to the possession of the following described real estate, situate, lying, and being in the county of Atchison, in the state of Missouri, to wit: A strip of land about 2 feet wide at the east end, about 3 feet wide in the center, and about a foot wide at the west end, and lying south of the following described line: Beginning 2 feet north of the southeast corner of the northeast quarter of section No. 4 of township No. 63 of range No. 41; thence northwesterly 7 rods; thence west bearing slightly south sixty-four to the middle of the old channel of the Nishnabotna river—and a strip of land lying south of the following described line: Beginning at the point last above described; thence southwesterly 10 rods; thence north by west 10 rods; thence west by south 10 rods to the bank of the old bed of the Nish nabotna river. The last above described line is off the true line, which divides the plaintiff's land from the defendant's land. At the beginning of said line it starts on the line, and at a distance of 10 rods from the beginning it is off the true line 6 feet. North 10 rods further on said described line it is off the true line 22 feet; and where the said described line off ends on the bank of said river said line is off the true line 10 feet. That the amount of land belonging to plaintiff and taken by defendant is about one acre, laying in a wedge shape; it may be more; no accurate measurements as to quantity having been made.

"Plaintiff alleges that the defendant has built his fence on the above-described lines, and the in the spring of 1920, said fence commencing first above described line materially interferes with plaintiff's ingress, egress, and regress from his dwelling house to the public road east, and is unsightly, and throws the public highway too close to his dwelling house, to plaintiff's great annoyance, and that said outlet is the only outlet plaintiff has to the public road.

"That by an agreement made and entered into between plaintiff and defendant the line dividing plaintiff's land from defendant's land was fixed and was to be and is where the last water run in the old channel of the Nishnabotna river; that plaintiff immediately took possession of said land; that said agreement was made and entered into more than 10 years ago; that plaintiff has been in open, notorious, actual, continual, peaceable, and adverse possession of said land under said agreement for more than 10 years next before the filing of this petition, under color of title, to wit, from the year 1902.

"That while plaintiff was such owner and so seized and possessed, and entitled to the possession of said land, the defendant afterwards, on the ____ day of ____, 1920, without right, unlawfully did enter into and upon the same, and oust and eject plaintiff therefrom, and ever since that day has wrongfully withheld and still withholds the possession thereof from plaintiff, to his damage in the sum of $150; that the value of the rents and profits of said land from the ____ day of ____, 1920, and while the plaintiff has been excluded therefrom, is $100.

"Wherefore plaintiff asks judgment for the restitution of said land and premises, for the sum of $150 for the wrongful withholding said land and premises, and $100 for the rents and profits of said land, and for his costs in this behalf expended."

No demurrer or other dilatory pleading was interposed to this petition, to which the defendant answered, denying generally its allegations, pleading the statute of limitations of 10 years, and alleging that he himself had been in actual possession of the same land for more than 25 years next before the institution of the suit.

To this the plaintiff replied by general denial, and pleading his own open, notorious, and adverse possession for more than 10 years, and that defendant assisted him in digging the ditch which they agreed upon as the boundary between their lands.

Upon these issues, which were stated at great length in the answer and reply, the parties went to trial to a jury, which returned the following verdict:

"We, the jury, find for the plaintiff.

We, the jury, find that at the time of the commencement of this suit the plaintiff was entitled to the possession of the following described real estate, situate, lying, and being in the county of Atchison, state of Missouri, to wit:

"All that land lying north and west of the ditch in old channel of the Nishnabotna river extending to the fence erected by the defendant at the gas pipe mentioned in evidence, and thence in a southwesterly direction from said gas pipe to a post in plaintiff's fence, said post being in the old bed of the Nishnabotna river. The jury assesses the rent and profits of said land from the 1st day of March, 1920, to the day of trial at the sum of $2."

The land involved in the suit is situated in the old bed of the Nishnabotna river where it passes through section 4 of township 63, range 41, of the government survey. Originally the river ran through this section, but its course was deflected at a point north of the state line after the government survey was made, and its old channel is still undergoing the natural process of obliteration. It was meandered by the government survey, which only extended to its banks. It is unnecessary to refer to the ownership of the lands which were uncovered when the river ceased to flow over them, otherwise than to say that the lands so uncovered included the little parcel which is the subject of this appeal. It flowed between the lands owned by the parties to this suit, and plaintiff's claim has grown out of an alleged arrangement to divide the lands between the banks of the old stream between themselves. It is asserted by the plaintiff, and not denied by defendant, that the arrangement was that the dividing line should be the thread of the last flow of the water in this old channel. This was marked by a ditch kept open by them, and the plaintiff asserts, and the evidence tends to prove, that they also agreed that the portion of the fence to be built by each should be constructed on his own side of this ditch, which began at the quarter section corner on the east side of section 4, which was marked by a stone, and extended in a westerly direction till it discharged into what is called in the record "the big ditch" further toward the southwest. The evidence also tends to show that 1,122 feet westerly from this stone there was a piece of gas pipe set in the ground; and 104 feet further in a southwesterly direction, in the old channel was a post in the fence constructed by plaintiff under that arrangement. These distances were slightly modified by other evidence which we may notice in our opinion.

It was from this latter post that the defendant, shortly before the bringing of this suit, took up the construction of the fence further to the southwest, but, instead of crossing the ditch to his own land to the south and east of it, he proceeded to build it on the west side upon the land of plaintiff. From the post already mentioned he ran it in a southwesterly direction across plaintiff's land for a distance variously stated in the evidence to a post in a fence belonging to plaintiff which connected it with the "big ditch" in the old river bed. It is the land between this fence and the ditch forming the agreed line that is now in question; the court having, at the close of all the evidence, instructed the jury to find for defendant as to the strip of land lying at the east end of the line between them.

The court, at the instance of plaintiff, instructed the jury as follows:

"The court instructs the jury that, if they believe from the evidence that there was an agreement between plaintiff and defendant that the line separating the land of plaintiff from the land of defendant should be where the last water ran in the old channel of the Nishnabotna river, and you further believe from the evidence that the ditch constructed in the old channel of said river was constructed on said line where the last water ran in said channel, and you further believe from the evidence that in the spring of 1920 the defendant built a fence north and west of said ditch from the gas pipe mentioned in evidence, running from said gas pipe in a southwesterly direction to a post in the fence belonging to plaintiff, said post being in the old bed of said Nishnabotna river, and that the land between said ditch and said fence is north and west of said ditch, then your verdict will be for the plaintiff."

Among the instructions given for defendant the court gave the following:

"(1) The jury are instructed that the burden of proof in this case is on the plaintiff to prove his case by a preponderance of the evidence— that is, by the greater weight of the evidence. If the evidence does not preponderate in favor of the plaintiff or is evenly balanced, then your verdict should be for the defendant. You are further instructed that by preponderance of the evidence is not meant the greater number of witnesses, but by such evidence as is the more satisfactory and convincing to the mind of the jury."

"(3) The jury are instructed that, unless the plaintiff has shown to your satisfaction by a preponderance of the evidence that the plaintiff and defend...