Milligan v. Fritts

• Decision Date: 01 March 1910
• Citation: 226 Mo. 189,125 S.W. 1101
• Parties: MILLIGAN v. FRITTS.
• Court: Missouri Supreme Court

125 S.W. 1101

226 Mo. 189

MILLIGAN v. FRITTS.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. APPEAL AND ERROR (§ 882) — INDUCING ERROR BELOW — SUBMISSION OF ISSUES.

A party is not chargeable with having induced error in submitting an issue presented by an instruction given at his request after he had asked for a peremptory instruction of a verdict in his favor, which was refused.

2. ADVERSE POSSESSION (§ 65) — INCLOSED PROPERTY — MISTAKE AND IGNORANCE AS TO BOUNDARY.

That defendant in ejectment or those under whom he claims entered on land and located a fence and barn by mistake, and in ignorance of the location of the true boundary line, without intent to take what did not belong to them, and within their fences may have inclosed a larger area than they might have found their deed called for if they had consulted the plat and had the land surveyed, would not destroy the adverse character of their possession with intent to hold and claim all that the fence inclosed, though, if they located the fence on what they supposed was the true line and intended to claim only thereto whenever and wherever it might be located, the possession would not be adverse.

3. ADVERSE POSSESSION (§ 85) — POSSESSION TO BOUNDARY OR FENCE — EVIDENCE — SUFFICIENCY.

Evidence held to establish title by adverse possession of a lot bounded by a fence claimed to be over the true boundary line.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Suit by Ira S. Milligan against J. Rule Fritts. From a judgment for plaintiff, defendant appeals. Reversed.

Barclay, Fauntleroy & Cullen, for appellant. Fry & Rodgers, for respondent.

VALLIANT, J.

This is a suit in ejectment filed April 7, 1906, for a strip of land 4 feet wide at the east end, 2½ feet wide at the west end, and 128 feet long, off of the north side of lot 3, in block 5, of Clark's addition to the city of Mexico, in Audrain county. The petition is in the usual form and the answer a general denial.

There seems to have been no dispute about the record title, it being conceded that defendant held the record title to lots 1 and 2, and that the plaintiff held the record title to lot 3; but the plaintiff's contention was that the strip of land in suit was a part of his lot 3, while the defendant's contention was that, without regard to what the respective deeds called for, the strip in dispute was his by adverse possession for more than 10 years. Plaintiff introduced in evidence the plat of Clark's addition to the town of Mexico laid out in 1855, by which it appeared that lots 1, 2, 3, and 4, block 5, were each 60 feet wide and 128 feet long. The lots run in their numerical order from north to south, all fronting east on Washington avenue. The north line of lot 1 is the south line of Clay street, which intersects Washington avenue at that point. The following diagram conveys an idea of the situation:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The dotted lines indicate the strip of land in dispute.

Plaintiff introduced the testimony of a witness, the county surveyor, which tended to show that by a recent survey made by him, starting in the south line of Clay street at the northeast corner of lot 1 running south along the west line of Washington avenue 120 feet (assuming 60 feet as the correct front measure of lots 1 and 2), the fence of defendant at its front point was 4 feet south of the south line of lot 2, and therefore encroached that much on lot 3. Plaintiff's testimony also tended to show that plaintiff and those under whom he claimed had for many years paid the taxes assessed on lot 3, and that defendant and those under whom he claimed had paid the taxes assessed on lots 1 and 2. Plaintiff introduced the record of deeds showing a warranty deed from Warren B. McIntyre and wife to defendant dated February 23, 1898, conveying lots 1 and 2, block 5, Clark's addition. It came out in the plaintiff's testimony also that defendant's south fence had stood where it was at the beginning of this suit for more than 10 years, and that a building of defendant's which the witnesses called a barn had for the same length of time stood at the rear of lot 2 obtruding over what plaintiff claims to be the south line of defendant's property; the south wall of the building being on a line with defendant's fence, and that defendant and those under whom he claims had been in open occupation of the land up to his fence for more than 10 years.

Defendant's testimony tended to show that the fence, where it was at the beginning of this suit, had stood there for a period of more than 15 years and the building likewise; that during all that time defendant and those under whom he claims had been in the open occupation of the land included in the inclosure, exercising acts of ownership over it and claiming it as his own. The land except where the building stood was used and cultivated as a garden. Defendant introduced in evidence a contract for the purchase of the property under which he went into possession dated February 20, 1892. The contract was to the effect that in consideration of $2,200, of which $100 was paid and the balance in deferred installments, McIntyre and wife, then the owners, agreed to sell and convey the property to defendant as soon as he should pay the several installments into which the purchase money was divided; that on the date of the contract he went into possession, and subsequently paid the deferred installments and received the deed called for. The property is described in the contract as lots 1 and 2, block 5, Clark's addition. Plaintiff does not question the fact that defendant has been in open possession of the strip of land in suit for a period of more than 10 years exercising acts of ownership over it, but he contends that during all that time defendant's claim of ownership was conditional; that is, that he claimed it subject to the ascertainment of the true line between lots 2 and 3 whenever that line should be ascertained, and the case against defendant's objection was submitted to the jury on the theory that that was the issue in the case.

When we say that the case was submitted to the jury on that theory against defendant's objection, we are not overlooking the fact that in one of the instructions given at the request of the defendant that issue was presented, but the defendant had previously asked a peremptory instruction for a verdict in his favor, which the court should have given, even under the plaintiff's evidence, if there was no evidence that defendant's claim of title was conditional on the subsequent ascertainment of the true line. After the court had refused the defendant's instruction and had given instructions for the plaintiff on that theory, thus forcing the defendant to meet that issue, he had a right to meet it and make the best fight he could, without being chargeable with having induced the error, if error there was. This case differs in this respect from the case of Keen v. Schnedler, 92 Mo. 516 loc. cit. 526. 2 S. W. 312, where a similar instruction was given, and it was contended there was no evidence to support it. The court said: "We do not see how the defendants can well take this position, for they asked and had given an instruction involving the same principle. * * * But there was evidence to support the finding of the jury upon this issue whichever way they should find."

The first question we have to decide is whether there was any evidence to justify the submission of that question to the jury. Before taking up the evidence on which the plaintiff relies as supporting his claim that there was such evidence, we will look at the law on the subject of a claim of ownership conditioned on the ascertainment of the true boundary line as it has been pronounced by this court. In Hamilton v. West, 63 Mo. 93, the defense was adverse possession. The evidence showed that their house was three or four feet over their boundary line, and they had occupied it and claimed it as their own for more than 10 years. The plaintiff requested the court to instruct the jury that if defendant's ancestor, when he built the house, did not know where the true boundary line was, and by mistake and ignorance located the wall on plaintiff's land, then, although he and those under him occupied and claimed land up to the wall, their occupation was not adverse. The trial court refused to so instruct, and this court affirmed that ruling. The court said that if defendant in ignorance of the true line goes beyond it, and holds it intending only to hold up to the true line, wherever it might be, the holding is not adverse, but in such case, though he went over his line in ignorance of its true location, yet, if he took and held possession claiming up to his wall or fence, his possession was adverse; and the court said that, to render the possession adverse, it was not necessary that they should know that they occupied a part of the lot adjoining their own. In Walbrunn v. Ballen, 68 Mo. 164, the court, after referring to previous decisions, said: "The doctrine deducible from these utterances of this court is that if one by mistake inclose the land of another, and claim it as his own, his actual possession will work a disseisin, but, if ignorant of the boundary line, he makes a mistake in laying his fence, making no claim, however, to the land up to the fence, but only to the true line as it may be subsequently ascertained, and it turns out that he has inclosed the land of the adjoining proprietor, his possession of the land is not adverse." That language was quoted and approved in Cole v. Parker, 70 Mo. 372, in which case the defendant, who was...