Jones v. Eaton

• Decision Date: 12 March 1925
• Docket Number: No. 23238.,23238.
• Citation: 270 S.W. 105
• Parties: JONES v. EATON et al.
• Court: Missouri Supreme Court

270 S.W. 105

JONES v. EATON et al.

No. 23238.

Supreme Court of Missouri, En Banc.

March 12, 1925.

Appeal from Circuit Court, Wayne County; M. Dearing, Judge.

Action by Charles H. Jones against Robert S. Eaton, D. A. White, and others. Judgment for plaintiff, and last-named defendant appeals. Reversed and remanded for further proceedings.

John H. Raney, of Patterson, and A. O. Daniel, of Piedmont, for appellant.

LINDSAY, C.

In this suit the first count of plaintiff's petition sought to quiet title. The second was in ejectment. There were numerous defendants, but the appellant White was the only party contesting. It is stated by appellant that the title and right of possession sought to be established by the plaintiff is to all of the southeast fractional quarter of section 6, township 30, and range 5, in Wayne county; but the petition is not set out in the abstract of the record. The southeast quarter of said section 6 is fractional by reason of the fact that a part of it is cut off and included in what is called in the record "Survey 2081." Survey 2081 was in confirmation of a grant by the Spanish Crown, to one Domitilla Dehault. The United States confirmation survey of the Dehault grant, referred to as survey No. 2081, was made September 1, 1819. The lands, about 3,400 acres, included within the boundaries of survey 2081, lie in what are now the counties of Wayne, Iron, and Madison. The eastern boundary line of this survey cuts through said section 6, and through the southeast quarter thereof. This eastern boundary line running northward from the southeast corner of survey No. 2081 runs north, 8 degrees east.

The plaintiff's land in the southeast fractional quarter of said section 6 lies east of and abuts upon the defendant's land within said survey No. 2081, and the location of the true line of division between them was the issue. The defendant in his amended answer set forth what he averred was the western boundary line of the southeast fractional quarter of said section, it being a straight line beginning at a described point on the boundary line between Madison county and Wayne county, and ending at the southeast corner of said survey No. 2081; and he averred that he was not in possession of any part of said southeast fractional quarter. He next averred that the line aforesaid had not been recently surveyed, and that it was possible he might be in possession of a very small portion of said fractional quarter, and if such should prove to be the case he tendered to plaintiff the immediate possession thereof. The defendant next averred that sundry surveys of the western boundary line of said southeast fractional quarter of section 6 had been made, some of which were west of the line theretofore mentioned by him, and that if any such survey, west of the first-mentioned line, be the true boundary line of said southeast fractional quarter, then defendant "is in possession of all of that portion of the southeast fractional quarter of said section 6 lying west of the first said line, that is now inclosed by a fence, and that he is the owner thereof in fee simple." The defendant then disclaimed any right or title in any part of said southeast fractional quarter lying east of the line first described, and after a general denial, prayed the judgment of the court as to whether the line first described by him be the true western boundary of said southeast fractional quarter, "and if not, whether plaintiff owns or has any interest in that part thereof now under fence and lying west of said line," and for general relief.

The plaintiff in his reply alleged that—

The "western boundary line of the southeast fractional quarter of section 6, mentioned in the petition and amended answer, was the true exterior boundary line of survey No. 2081, extending from the northeast corner to the southeast corner thereof, and that none of the land owned and claimed by plaintiff in his petition lies west of said exterior boundary line of said survey, and that none of defendant's land lies east of said line, so that the sole question involved in this case is the location of said exterior boundary line of said survey No. 2081, extending from the northeast corner to the southeast corner thereof."

The court found the issues in favor of the plaintiff. Under the first count it was adjudged that plaintiff was the sole and absolute owner of all of the southeast fractional quarter of said section 6; and under the second, that plaintiff was entitled to recover the possession of 16.73 acres of land lying along and part of the west side of said southeast fractional quarter, held by defendant White at the commencement of the action. Counsel for defendant charge that error was committed in the admission of certain evidence ; that in certain particulars the finding of the court was against the law and the evidence, and unsupported by any legal evidence. It is also insisted that the judgment is void for uncertainty of description. This is an action at law. No declarations of law were asked or given. In the absence of error in the admission or rejection of evidence the conclusions reached by the court upon substantial evidence are binding upon us. Mathis v. Milton, 293 Mo. 134, 238 S. W. 806; Bingham v. Edmonds (Mo. Sup.) 210 S. W. 885.

The paramount question of fact to be determined was the location of the eastern boundary line of survey No. 2081 along the place where the line also constituted the western boundary line of the southeast fractional quarter of section 6. The eastern boundary line of survey No. 2081, from the southeast corner of the survey in Wayne county, to the northeast corner in Madison county, is about 2½ miles in length. The location of the southeast corner of survey No. 2081 was not in dispute among the various surveyors who testified, but there was as to the location of the northeast corner. The controversy is over the location of the northeast corner of survey No. 2081, and by consequence of that, over the true location of the line between the two corners, which should coincide in part with the west line of fractional section 6. The plaintiff introduced in evidence the record of the field notes of the survey made in 1819, under authority of the United States, setting off the Dehault grant, and describing its eastern boundary line. The plaintiff also relied upon, and introduced in evidence, the record of a resurvey of the eastern boundary line of survey No. 2081, made in June, 1887, by H. C. Wilkinson, then county surveyor of Wayne county. The plaintiff also introduced in evidence the record of a survey made in 1912, by J. L. Wilkinson, then county surveyor of Wayne county, and took the testimony at length of said J. L. Wilkinson as to other surveys made by him, one of which was made pending the trial. He also took the testimony of Harry. Griffith, surveyor and highway engineer of Jefferson county, who had retraced the survey made by H. C. Wilkinson. The defendant called J. M. Payton, the then county surveyor of Wayne county, who testified as to two surveys made by him in 1917 and 1918 the first of which was made by him in conjunction with C. T. McCormack, county surveyor of Madison county, who also testified. After the taking of much testimony from surveyors, and others, the case was submitted, and taken under advisement. About two years after, the submission was withdrawn by consent of the court and of the parties, and additional surveying was done by J. L. Wilkinson, who was again called by plaintiff and further surveying was done by E. R. Moore, assisted by J. B. Daniel, one of the attorneys for defendant, both of whom afterward testified for defendant upon the further hearing by the court. There was considerable testimony, from persons other than the surveyors, as to the location and character of various objects referred to and the possession or occupancy of ground by the adjacent landowners, and references to numerous surveys affecting the boundary line of survey No. 2081, made during a period extending back as far as 1869. The defendant insists that the Payton surveys correctly located the boundary line. It is conceded that there was some discrepancy between these.

In the survey made by McCormack and Payton, they located the northeast corner of survey No. 2081 as being about 150 yards distant from the point where that corner was determined to be under the survey and report of H. C. Wilkinson. The finding of the court was in accordance with the survey made by H. C. Wilkinson in 1887, and as resurveyed or retraced by J. L. Wilkinson. The first assignment goes against the admissibility in evidence of the record of the H. C. Wilkinson survey. When H. C. Wilkinson made his survey, he was, as has been stated, county surveyor of Wayne county, and he was surveying land situated in that county, and in doing so he undertook to locate the eastern boundary line of survey No. 2081, and to do that he undertook to locate or establish the north end of that line, which was one-half mile or more within Madison county, using for that purpose the record of the surveyor for the United States who had surveyed the Dehault grant, with such witness trees and other physical objects, referred to in the original field notes, as could be found.

The survey of this eastern boundary line by H. C. Wilkinson began from the northeast corner of survey No. 2081, as that corner was determined by him, and extended to the southeast corner. He ran the line with relation to the point in Madison county which he concluded from the field notes and the evidence found was the northeast corner of survey 2081, and the point in Wayne county— the southeast corner—about which there was and is no dispute. The defendant objected to the record of the survey made by H. C. Wilkinson, "in so far as it pretends to establish a corner and lines in Madison county, for the reason that H. C. Wilkinson was not the surveyor of Madison county, and had no authority to make...