Missouri Lumber & Mining Co. v. Chronister

• Decision Date: 07 March 1924
• Docket Number: 23605
• Parties: MISSOURI LUMBER & MINING CO. v. CHRONISTER
• Court: Missouri Supreme Court

259 S.W. 1042

MISSOURI LUMBER & MINING CO. v. CHRONISTER

No. 23605

Supreme Court of Missouri, First Division

March 7, 1924

J. W Chilton, of Springfield, for appellant.

All concur, except JAMES T. BLAIR, J., not sitting.

OPINION

RAGLAND, J.

Plaintiff brought ejectment for 40 acres of land, the northwest quarter of section 30, township 28, range 1 west in Carter county. The defendants answered separately. Each admitted having possession of a portion of the land, which he described by metes and bounds, and claimed title thereto through the operation of the 10-year statute of limitations. The reply to each answer was a general denial. On the trial of the cause plaintiff recovered the possession of the land claimed by defendant W. C. Chronister, but as to that claimed by J. B. Chronister the judgment was adverse to it. To reverse the judgment in that respect plaintiff prosecutes this appeal. This review is limited, therefore, to the trial of the issues as between plaintiff and defendant J. B. Chronister.

At the inception of the trial the parties offered in evidence the following stipulation:

'It is now stipulated and agreed between the parties plaintiff and defendant that plaintiff is the holder of and owner of the record title to the land described in its petition, by conveyances and instruments of record upon the deed records of Carter County, Mo.; that the defendants claim the title to so much of said land as is described in their answers separately filed herein by adverse possession and limitation, and that the issues to be tried in this cause are whether or not plaintiff has been divested of its title to the land so claimed by defendants by virtue of the operation of the 10-year statute of limitations pleaded by said defendants herein, or so much of said land as they claim by answer filed herein by virtue of said statute of limitations.'

Under this stipulation and the pleadings, the sole issue, so far as title was concerned, was that of adverse possession, and the defendant properly assumed the burden of proof.

Defendant's evidence consisted of his own testimony and that of two other witnesses. He testified that he was a farmer by occupation, but for several years had been engaged in working in timber, cutting logs and making ties, first for the plaintiff, Missouri Lumber & Mining Company, and then for the Smalley Tie & Timber Company; that in 1904 he cleared the small parcel of land in controversy of the small timber he found growing on it, the commercial timber having been previously removed by some one else, fenced it, built a log house and a log barn on it, and set out a small fruit orchard; that since that date (1904) he had continuously occupied and cultivated the land; and that during all that time he had claimed to own it. With respect to his claim of ownership at the beginning of the occupancy and subsequently, his testimony was as follows:

'Q. Well, did you buy this land from anybody? A. No, sir.

'Q. Got a deed from anybody? A. No, sir.

'Q. Did anybody give you permission to go on this land and clear it up and make a home there? A. I settled it for my home.

'Q. How is that? A. I settled it as my home.

'Q. That is not the question. Did anybody give you any permission to go there and improve it; did they tell you to do that? A. No, sir.

'Q. Well, you said it was your home. Didn't you understand that a man had to got a deed to land or buy it before it was his? A. Yes, sir. I have lived out the limitation of this land and I claim it.

'Q. When you first went there you did not have any limitation. When you first went there what was your idea -- just take land that did not belong to you, or did you think you could acquire the title to somebody's land by settling on it without paying for it? A. Well, I settled there with the intention --

'Q. Intention of what? A. I was under the impression it was vacant land.

'Q. Government land? A. Yes, sir.

'Q. You thought it was government land? A. Yes, sir.

'Q. Did you ever make an application to the government for the land? A. No, sir.

'Q. When did you think you could get vacant land unless you got a title from the government? A. I figured on --

'Q. What did you figure on? (No answer.)

'By Counsel for the Defendants: Q. Answer the question. A. I figured on making an effort to get title. I have lived out the limitation.

'By Counsel for the Plaintiff: Q. Did you think you could live out the limitation against the government, on government land? (No answer.)

'By the Court: Q. Did you think you could live out a limitation against the government? A. No, sir. * * *

'Q. Have you ever paid any taxes on this land? A. No, sir.

'Q. Did you ever offer to pay any? A. Yes, sir; I took steps to pay taxes on it.

'Q. What were those steps you took? A. I wanted to know who was paying taxes on it.

'Q. That is the step you took? A. Yes, sir; I made an effort to pay the taxes on that, and they told me the people was paying the taxes on it.

'Q. Who did you discover was paying the taxes? A. I understood the Missouri Lumber & Mining Company was.

'Q. When did you do that? A. I don't remember the date.

'Q. What year was it? A. Some 3 or 4 years back.

'Q. Back from now? A. Yes, sir.

'Q. Did you ever make more than one effort to pay the taxes? A. Yes, sir; I made two trips, I believe.

'Q. The same year or different years? A. I believe it was the same year.

'Q. Well, now, when you found that the Missouri Lumber & Mining Company was paying the taxes on this land, was that the first time you knew the Missouri Lumber & Mining Company claimed to own it? A. Yes, sir.

'Q. That was the first you knew about it? A. Yes, sir.

'Q. When you found the Missouri Lumber & Mining Company was paying taxes on it you learned then the government did not own it? A. Yes, sir.

'Q. That was the first you knew that the government did not own it? A. Yes, sir. * * *

'Q. Well, did you have any intention of buying it? A. No, sir; I did not, because I thought it was mine.

'Q. When did you first think it was your property? A. I have thought it continuously from the time I moved on it.

'Q. At the time you first settled there did you think it was yours? A. Yes, sir.

'Q. When you first went there, you thought it was yours at that time? A. Yes, sir. * * *

'Q. Now, what was your object in going on that land in the first place? A. Making it my home. * * *

'Q. You didn't go on it at that time from the fact you thought it was government land did you? A. I went there because I thought it was mine, and with the intention of making it my home.'

William Partney, county surveyor of Carter county, testified that he surveyed and platted the ground occupied by defendant, at the latter's request, two days before the commencement of the term of court at which defendant was required to answer plaintiff's petition. It further appears from the testimony of this witness that the land within defendant's inclosure was irregular in shape, and contained 14.02 acres.

Defendant's testimony with reference to having cleared, fenced, and occupied the land in suit was fully corroborated by his remaining witness, Sam Walker. The latter also testified that during the period of such occupancy the defendant claimed the land was his.

Plaintiff's evidence tended to show in a general way that it owned a large body of timber land, including the small tract in controversy, from which it was, and for a number of...