Indian Creek Land Co. v. Bradford

• Decision Date: 07 May 1935
• Docket Number: No. 32631.,32631.
• Parties: INDIAN CREEK LAND CO. v. BRADFORD et al.
• Court: Missouri Supreme Court

82 S.W.2d 589

INDIAN CREEK LAND CO. v. BRADFORD et al.

No. 32631.

Supreme Court of Missouri, Division No. 2.

May 7, 1935.

Appeal from Circuit Court, Crawford County; J. H. Bowron, Judge.

Ejectment by the Indian Creek Land Company against Mary C. Bradford and husband. From a judgment for plaintiff, defendants appeal.

Affirmed.

L. Cunningham, of Jefferson City, Esther M. Golly, of St. Louis, and Wm. R. Lay, of Steelville, for appellants.

Harry Clymer, of Steelville, for respondent.

COOLEY, Commissioner.

This action is ejectment. The suit was filed September 18, 1930, and tried October 27, 1930. Plaintiff claims through record title, defendants by adverse possession for more than ten years. Defendants also ask that plaintiff be divested of "any right, title or interest" in the land involved. The cause was tried to the court sitting as a jury. No declarations of law were asked or given. The court found for plaintiff and rendered judgment for possession and 1 cent damages. Defendants appealed.

Plaintiff is a corporation. Defendants R. E. and Mary C. Bradford are husband and wife. The land in dispute is a small tract, said to contain about an acre and a half, in the southeast part of the southeast fourth of the southeast quarter of section 27, township 39 north, range 3 west, in Crawford county. It is somewhat triangular in shape and is described by metes and bounds in the petition. The section line between sections 27 and 26 forms its eastern boundary as described in the petition. By their joint answer defendants admit that they are in possession and assert that they are the owners by adverse possession, asserting no other ground of ownership. Defendants own land in section 26, adjoining this land and other land of plaintiff in section 27.

By patent dated April 6, 1897, the United States granted to Charles Christopher the south half of said southeast quarter of section 27, with other lands. Plaintiff derives title through mesne conveyances from Christopher, the last conveyance in its chain of title being a deed to it from Eugene H. Benoist. The disputed tract and the other lands conveyed by Benoist to plaintiff are sometimes referred to in the testimony as the Benoist land, or as Benoist's land. Benoist may be connected with plaintiff corporation, though that is not shown. Plaintiff proved its record title, which is not disputed, and rested.

For defendants Mr. Bradford testified that in 1913 he bought from Catherine Weinborg a tract of land in the southwest fourth of the southwest quarter of section 26, having the deed made to his wife and codefendant, Mary C. Bradford. It is admitted that such deed conveyed no land in section 27, the section line between the two sections being the west boundary line of the lands described in the deed to Mrs. Bradford and the east boundary line of plaintiff's deeded land. Bradford testified that there was at that time a fence along the west side of the tract in dispute, said tract forming part of an inclosed field, the greater portion of which is east of the section line and a part of the land described in the Weinborg deed. He said that before purchasing a Mr. Bothe, uncle of Catherine Weinborg, and who seems to have been acting for her in negotiating the sale, pointed out that fence to him as the west boundary of the land he was buying. Mrs. Bradford was not present on that occasion, but she testified that she saw the fence before the deed to her was made. Bradford said that he and his wife took possession of all the land within the inclosure, extending to the fence, supposing it to be land conveyed by the Weinborg deed and believing that the fence was his west line and that they had ever since held the open, exclusive, and peaceable possession of it; that they had since cultivated or pastured it and had kept up the fence. Mrs. Bradford gave similar testimony. It is clear that the defendants have had actual possession since the making of the Weinborg deed in 1913, more than ten years prior to the filing of this suit. By rulings of the court, of which no complaint is made on this appeal, defendants were not permitted to state whether or not they claimed to own the land up to the fence and claimed it regardless of where the true line might be. Mr. Bradford testified, "I took possession of the property that was shown to me by Mr. Bothe as being the cave property." It appears that the land conveyed by the Weinborg deed had previously belonged to the Onondaga Cave Company and that there was a cave somewhere upon it. Both defendants testified that they took possession in the belief that the disputed tract was part of the land described in their deed and claimed and held it because they so believed and by virtue of that deed; that they did not know until a survey was made in 1928, some two years before this suit was filed, that it was not within their deed. As frequently happens in such cases, they testified, in substance, that they did not mean to claim any land which they did not think belonged to them, but believed, when they took possession, and still believed, that the disputed land was theirs. Mr. Bradford testified that the fence, which in fact runs somewhat northwest from about the southeast corner of section 27, looks like it runs north and south; that he always thought so until the survey was made; "when you stand up there it will fool you. You will think that fence line is north and south."

Some time in 1928 a survey was made. Mr. Bradford assisted in that survey, acting as flagman. It located the section line. Its accuracy is not disputed, and it is treated by both parties as correctly locating the section line, and therefore the line between the lands to which they respectively have record title. The surveyor's record shows "Survey made for Mrs. Mary C. Bradford."

Defendants offered further evidence tending to prove that 30 or 35 years or more prior to the trial a Mr. Davis, who then owned the lands in section 26 conveyed by Catherine Weinborg to defendants, had had the disputed tract fenced and inclosed with his lands in section 26, and had cultivated it, and that his west fence was on the line of the present fence along the west side of the disputed tract. It appears that the original fence was a rail fence, which, at some time and by some person undisclosed, perhaps by the "cave people," had been replaced with a wire fence, which was there when defendants bought from Weinborg.

In rebuttal, plaintiff, without objection, introduced evidence tending to prove the following:

Mr. Christopher, patentee of the land in dispute, testified that when he got his patent "squatters" had cleared this tract and that Mr. Davis was cultivating it; that he notified Davis to cease "trespassing," which Davis did, and thereafter refrained from using it so long as he, Christopher, owned it; that soon after the Bradfords bought he pointed out to Mr. Bradford at the latter's request where the true line between him and the Benoist land ran, which was approximately where the survey of 1928 showed the section line to be. Testimony of several other witnesses was to the effect that at numerous times after the approximate location of the section line had been thus pointed out to him Mr. Bradford had stated that the land west of the section line, which would include the land in controversy, was Benoist's land, or that it belonged to Benoist or to the Indian Creek Land Company. Mr. Ed Campbell testified that he had worked for Mr. Bradford "on that property" about 1927; that Bradford pointed out to him about where he understood the section line ran (which witness described in a way showing that Bradford was pointing out the section line and not the fence line), and stated that the land west of that line was Benoist's land; "He always told me that was Mr. Benoist's land on the west side" (west of that line). Campbell also assisted in the 1928 survey. Asked if Bradford had said anything on...