Mayor, Etc., of Town of Liberty v. Burns

• Decision Date: 28 February 1893
• Citation: 21 S.W. 728,114 Mo. 426
• Parties: MAYOR, ETC., OF TOWN OF LIBERTY v. BURNS.
• Court: Missouri Supreme Court

21 S.W. 728

114 Mo. 426

MAYOR, ETC., OF TOWN OF LIBERTY v. BURNS.

Supreme Court of Missouri, Division No. 2.

February 28, 1893.

CONFLICTING BOUNDARIES — EVIDENCE.

In a controversy respecting conflicting surveys and boundaries tried to a court, a request that, if S. was county surveyor at the time he surveyed the land, and at that time found the stump of the witness tree, etc., and ran certain lines therefrom according to the United States survey, the finding should be for plaintiff, cannot be deemed to have misled the court to attach undue importance to the testimony of S., over other witnesses of like experience, by referring to S. as county surveyor, and to the finding of the stump, when in fact there had been no record made by S. of the survey.

On rehearing. Affirmed.

For former report, see 19 S. W. Rep. 1107.

BURGESS, J.

1. In his motion for rehearing, defendant claims that the court overlooked his objections to plaintiff's first instruction, to which he makes many. The chief objection to the instruction is because of the clause which reads as follows, viz.: "If the court believes from the evidence that R. J. Stepp was county surveyor of Clay county, Mo., at the time he made the survey of the piece of ground afterwards platted and known as `Allen & Burns' Addition to the City of Liberty,' and at said time found the stump of the witness tree at," etc. Defendant claims that the instruction is wrong because of the fact that it refers to Stepp as county surveyor, and the finding of the stump of a witness tree at the corner of sections 5, 6, 7, and 8, by him, when in fact he made no record of the survey, thereby attaching to his testimony more importance and weight than it was entitled to, over and above other witnesses of like experience and occupation. The cause was tried by a court of experience and learning, and it is utterly impossible to see how he could have been misled by this instruction, or have attached any undue importance to the testimony of this witness. It is certainly not to be inferred from the fact that the instruction refers to him as county surveyor. Something must be conceded to the intelligence and powers of discrimination of the trial court in all matters that come before it, and more especially in passing upon the weight of testimony, and the credibility of witnesses, with whose characters and standing he is in a large degree quite familiar; and especially is this true in the rural districts. If cases were to be reversed...