Long v. Higginbotham

• Decision Date: 31 March 1874
• Citation: Long v. Higginbotham, 56 Mo. 245 (Mo. 1874)
• Parties: JOHN LONG, Plaintiff in Error, v. THOMAS HIGGINBOTHAM, Defendant in Error.
• Court: Missouri Supreme Court

56 Mo. 245

JOHN LONG, Plaintiff in Error,

v.THOMAS HIGGINBOTHAM, Defendant in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to Washington Circuit Court.

G. J. Van Allen, for Plaintiff in Error.

The deeds introduced showed color of title.(Ang. Lim., [5th Ed.]p. 408, and cases cited;Fugate vs. Pearce, 49 Mo., 441.)Possession had been shown under that color of title.(Crispen vs. Hannavan, 50 Mo., 536.)

Reynolds & Relfe, for Defendant in Error.

The “south fourth” of a quarter section gives no description at all.When such a description occurs the deed gives no color of title.(Long vs. Wagoner, 47 Mo., 179;Home vs. Williams, 51 Mo., 252;Clemens vs. Rannells, 34 Mo., 579;Campbell vs. Johnson, 43 Mo., 250.)

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment to recover possession of a small portion of what is termed the South fourth of the North-west fraction quarter of Section 10, Township 38, Range 3.The defendant admitted possession of so much of the tract claimed as was included in the South-east fraction quarter of the North-west quarter of said section 10.

The land in controversy was claimed to be a part of a tract of land of about 578 acres, alleged to have been originally purchased of the United States by John Smith, (T.) at what period does not appear; but at the date of a conveyance made by his daughter Ann White, in 1847, to F. J. Smith, it was surveyed by Eugene O'Mara, the County Surveyor of Washington county, as the ““Bellefontaine Mines.”This survey was made at the instance of said F. J. Smith or his agents, and said Smith about that time purchased 40 acres in section 16, making the whole tract about 618 acres.Smith and the Longs had been in possession of this tract ever since, until about 20 months before this suit was brought, when the defendant put a tenant on the South-east fraction quarter of North-west quarter of section 10, and within the lines of the old survey.

There were three deeds given in evidence by the plaintiff,--one from Ann White to F. J. Smith in July, 1847,--one from F. J. Smith to W.Long in June, 1856, and the third from W.Long and wife to the plaintiff.In all these deeds the disputed land is called the South fourth of Northwest fraction quarter of section 10.

The following plat shows the location of the land in dispute.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

It appears from the plat of survey of O'Mara in 1847, which was in evidence, that from the North-east corner of section 16, which is also the South-west corner of section 10, the western line of an old survey, made doubtless before the government surveys, called the Madden survey, ran diagonally through the South-west and North-west quarters of this section and made them fractional.And the survey, made by O'Mara, commencing at the South-west corner of section 9, and running North sixty chains, fifty links on the line between sections eight and nine, was then run due east across sections 9and10, till it interesected the West line of the Madden survey, and thence down the said West line of the Madden survey in a South-westerly direction till it reached the North-east corner of section 16, and thence to the beginning.

There is no dispute concerning any of the land in this survey except the claim of defendant to the 33 acres which is in the South-east quarter of the North-west quarter of section 10, outside or West of the Madden line.This land, is beyond dispute, included in the O'Mara survey of the Bellefontaine or Smith tract, as it was generally called.

There were three surveys of this Bellefontaine tract, made by three different county surveyors,--all at the instance of the plaintiff or those under whom he held.One in 1847, by O'Mara as heretofore stated, a second made by Sholer, in 1857, and a third in 1872 or 1873, by Will, the then County Surveyor.They all adopted the West line of the Madden survey as the East line of the Bellefontaine tract--and of course all include that part of the South-east quarter of the North-west quarter of section 10, which defendant claims.

From a correspondence with the Commissioner of the General Land Office, it appears that all the land embraced in the O'Mara survey has been patented to John Smith, (T.) under an entry at St. Louis, No. 16205, but at what date the entry was made or the patent issued does not appear.This correspondence was offered but excluded by the court.

The defendant who took possession of the 33 acres of land in dispute about 20 months before this suit was brought, derived his title from one Lancaster, who entered the South-east fraction quarter of the North-west quarter of section 10, in 1836, and had a patent issued in January, 1852.It is not claimed that he ever had any possession of it, until about two years before this action was commenced.

There was in 1866, an attempt by the defendant to have this South-east quarter of North-west quarter of section 10 surveyed--but the survey was not completed.When the surveyor reached the Madden line, the plaintiff was sent for and some conversation occurred about the titles, which is immaterial and the survey was abandoned.No trees were blazed or other marks made or corners established.

There is a mass of testimony in the record concerning possession and acts of ownership by plaintiff.The details of this evidence it is unnecessary to state.It was clear that the plaintiff or those from whom he derived possession had been in possession of this tract, called the Bellefontaine Mines or Smith tract, from 1847 up to the entry of the defendant in 1871 or 1872; had various buildings, tences, mineral diggings on different parts of the tract, and cut rails and saw-logs, &c., throughout the land.There is some conflict of testimony as to the extent and character of these acts of ownership on the specific piece of ground in dispute.There was an old racetrack on it and no portion of it was enclosed and no buildings were on it, nor were there any diggings on it.There is evidence however, that occasionally the plaintiff or his employees cut rail timber on it.The defendant beyond doubt never had possession nor claimed any, until he took possession in 1871.

The plaintiff asked instructions to the effect, that if the court finds that the plaintiff, and those under whom he claims title, had actual possession under color of title of a part of the tract of land described in the deed from D. W. Long and wife, and claimed the whole tract continuously for over ten years, and exercised during that time the usual acts of ownership over the whole tract so claimed, then such possession shall be deemed possession of the whole tract; and if it is found that the S. 1-4 of the N. W. Qr. of Sec. 10 was included within the whole tract so claimed, the verdict must be for plaintiff.

The court refused the instructions--gave a...