Hunnewell v. Burchett

• Decision Date: 12 December 1899
• Citation: 54 S.W. 487,152 Mo. 611
• Parties: Hunnewell et al., Appellants, v. Burchett
• Court: Missouri Supreme Court

54 S.W. 487

152 Mo. 611

Hunnewell et al., Appellants, v. Burchett

Supreme Court of Missouri, Second Division

December 12, 1899

Appeal from Oregon Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and remanded.

Wallace Pratt and W. J. Orr for appellants.

(1) Respondent's possession of the strip of ground in dispute was not under claim of title for ten years prior to the institution of this suit. DeBarnardi v. McElroy, 110 Mo. 650; Allen v. Mansfield, 108 Mo. 343; Kansas City Milling Co. v. Riley, 133 Mo. 574; Bradly v West, 60 Mo. 33. (2) Respondent's possession was not hostile in its inception or continuance to the true title of the owner. Maberry v. Dollarhide, 98 Mo. 198; Burke v. Adams, 80 Mo. 504; Nave v. Smith, 95 Mo. 596; Moore v. Harris, 91 Mo. 616; Knowlton v. Smith, 36 Mo. 507; Pharis v Jones, 122 Mo. 125; Crawford v. Ahrnes, 103 Mo 88; Finch v. Ullman, 105 Mo. 255. (3) Possession of land, claiming only the improvements and not the land itself, is not adverse. Brown v. Simpson, 2 S.W. 644; Davenport v. Sebring, 52 Ia. 364; Leon & H. Blum Land Co. v. Rogers, 32 S.W. 713; Hartman v. Huntington, 32 S.W. 562.

A. H. Livingston for respondent.

BURGESS, J. Gantt, P. J., concurs; Sherwood, J., absent.

OPINION

BURGESS, J.

This is ejectment to recover the possession of three quarter-sections of land from defendants, which is alleged to be wrongfully detained by him. The suit was commenced in July, 1895, the ouster being laid on the 20th day of that month.

The petition is in the usual form.

The answer admits the possession of ten acres of the tracts sued for, but denies the possession by defendant of any other portion of the land, and disclaims all right or title thereto. It then pleads the ten year statute of limitations with respect to that part of which defendant admits possession.

The case was tried by the court a jury being waived. The trial resulted in a judgment for defendant, from which plaintiffs, after unsuccessful motion for new trial, appeal.

The lands described in plaintiffs' petition are part of what is known as Agricultural College Lands, granted to the State of Missouri by act of Congress on July 2, 1862.

They were selected by the State in 1866, from the lands granted, and on the 22d day of September, 1881, they were deeded by the State of Missouri to George H. Nettleton, who afterwards conveyed them to these plaintiffs. They were not subject to entry, preemption or homestead after they were granted to the State on July 2, 1862. Plaintiffs paid all taxes upon the land from 1881, up to the time of the trial.

Defendant testified that he took possession of that part of the land of which he admits the possession on the 17th day of November 1885, and had been in the continuous possession of it ever since, having bought it from one Forest. This suit was begun in July, 1895, so that defendant's possession by reason of his personal occupation of the land was not for ten years before the commencement of this suit, and therefore no bar to plaintiffs' action even if adverse, and unless the possession of Forest from whom defendant bought was also adverse to plaintiffs, the statute of limitations was no bar to this action, for in order that the possession of land may bar the true owner of his right to its possession when the occupant holds possession without color of title as in the case at bar, his possession must be open, notorious, continuous and adverse, for the period of ten consecutive years, under claim of ownership. [Bowman v. Lee, 48 Mo. 335; Fugate v. Pierce, 49 Mo. 441; Nelson v. Brodhack, 44 Mo. 596; Wilkerson v. Eilers, 114 Mo. 245, 21 S.W. 514.] "The term 'adverse possession' designates a possession in opposition to the true title and real owner, and it implies that it commenced in wrong -- by ouster or disseizin -- and is maintained against right. The law, on the contrary, presumes that every possession is rightful and consistent with, not in opposition or 'adverse' to, title and ownership. A party, therefore, who relies upon 'adverse possession' in order to rebut this presumption of possession consistent with the title of the real owner, must prove his possession to be 'adverse' to the title set up (Jackson v. Sharp, 9 Johns, 163; Ld. Raym. 329); that is, he must show the actual knowledge of the real owner that he claims in opposition to, and defiance of, his title, or he must show such an occupancy and user, so open and notorious, and inconsistent with, as well as injurious to, the rights of the true owner, that the law will authorize, from such facts, the presumption of such knowledge by the true owner. It is not the mere occupancy or possession which must be known to the true owner, to prejudice his...