Mooney v. Canter

• Decision Date: 10 March 1958
• Docket Number: No. 1,No. 45971,45971,1
• Parties: Eugene A. MOONEY and Ruth M. Mooney, his Wife, Respondents, v. Samuel L. CANTER and Lillian R. Z. Canter, his Wife, Appellants
• Court: Missouri Supreme Court

Page 1

311 S.W.2d 1

Eugene A. MOONEY and Ruth M. Mooney, his Wife, Respondents, v. Samuel L. CANTER and Lillian R. Z. Canter, his Wife, Appellants.

No. 45971.

Supreme Court of Missouri, Division No. 1.

March 10, 1958.

Ennis & Pannell, William L. Pannell, Festus, for appellants.

Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for respondents.

HOLLINGSWORTH, Presiding Judge.

This suit arose out of a dispute between plaintiffs and defendants as to the location of the boundary line between their adjoining tracts of land situate in a rough, wooded area of Jefferson County, Missouri. Plaintiffs' land lies to the east and defendants' land lies to the west of the line in controversy. Plaintiffs, alleging title to the strip of land in dispute by adverse possession for a period of more than ten years under the provisions of Section 516.010 RSMo 1949, V.A.M.S., instituted this action in three counts: count one, to quiet their title; count two, for ejectment; and count three, to enjoin defendants from trespassing upon said tract. Defendants' answer (not entirely clear) admitted plaintiffs' possession of an undesignated portion of said tract, denied plaintiffs' possession of an undesignated portion and asserted their record title to an undesignated portion. The issue of plaintiffs' title by adverse possession to the strip in question was submitted to a jury and the counts in ejectment and for injunction were submitted to the court. Upon return of the jury's verdict finding title in plaintiffs, judgment was rendered in favor of plaintiffs on all three counts of their petition. Defendants have appealed, contending, in essence, that although plaintiffs pleaded title by adverse possession and their case was submitted and adjudged upon that theory, the evidence actually showed that plaintiffs claimed title only to their true boundary; that such evidence will not support a verdict and judgment based upon a plea of adverse possession; and that defendants' motion for a directed verdict should have been sustained. (Inasmuch as neither the plaintiff wife of plaintiff, Eugene A. Mooney, nor the defendant wife of defendant, Samuel L. Canter, participated in the trial, we shall, for convenience, frequently refer to Eugene A. Mooney as though he were the sole plaintiff and to Samuel L. Canter as though he were the sole defendant.)

In determining whether plaintiffs made a submissible case of title by adverse possession as pleaded in their petition and submitted to the jury under the instructions of the court, we accept the evidence most favorable to plaintiffs. See collected cases in Vol. 3, Part 1, Missouri Digest, Appeal and Error, k930(1). Such evidence supports a finding of facts in substance as hereinafter set forth.

Plaintiffs' farm is described in their deed as 'Lot Four (4) being the Southeast part of U. S. Survey No. 2138, * * * containing 160 acres, less * * * 1 1/2 acres which was reserved, * * *', etc. (The acreage reserved is not here involved.) The farm is generally described as being one-half mile in length north and south and one-half mile in width east and west. It was acquired by William Kleinschmidt in 1887. Following his death, it was owned by his heirs until it was conveyed to William C. Grass and Irene Grass, husband and wife, in 1943, who owned it until they conveyed it to plaintiffs on December 11, 1946. Defendants purchased their land to the west of the disputed tract from H. W. Dornan in 1949, who had acquired it in 1927.

The strip to which plaintiffs asserted title by adverse possession is 2,706 feet in its north and south length. It lies west of the Plattin-Flucom County Road (hereinafter referred to as the 'road'). Its north, south and west boundaries are straight and form, approximately, the three sides of a rectangle, but, due to the winding course of the road forming its east boundary, the strip varies in width as the road winds. At its south end, which coincides with the south line of Survey No. 2138, the strip is 750 feet in width, at its north end it is 460 feet in width, and at its narrowest point (approximately midway of its north south length), it is about 150 feet in width. The road runs in a general north-south direction along and within the west boundary of the farm. An aerial map, introduced into evidence by agreement of the parties, shows that the road 'bows' quite deeply (several hundred feet) to the west at a point beginning some 900 to 1200 feet north of plaintiffs' south boundary line. The westward bow thus made extends on northward for some 600 to 900 feet, at which point the road curves back to a north-easterly course until it crosses plaintiffs' north boundary. Plattin Creek, a meandering stream flowing in a general north-south direction, is west of the road. At the south boundary of plaintiffs' farm, the creek appears to be from 400 to 500 feet west of that road. Near the most western part of the bow in the road, the creek bed approaches and, apparently, for a short distance, encroaches beyond the boundary line asserted by plaintiffs. At the north line of plaintiffs' farm, the creek appears to be some 250 to 350 feet west of the road. The bow in the road produces V-shaped tracts of land between the road and the creek at the southwest and northwest corners of plaintiffs' farm. The south tract contains approximately four and one-half acres. The north tract contains approximately two acres. Between these tracts there are gravel bars and an area used for picnicking and parking automobiles.

There seems not to have been any actual dispute about the boundary until defendants acquired their title in 1949. It was the use of and profits derived from the gravel bars and picnic area, together with ingress and egress from the road thereto, that provoked this controversy. Prior to the time defendants acquired their land, plaintiffs, under claim of ownership, sold gravel from the bars and charged for picnicking and parking privileges. After defendants came to their farm, they undertook to avail themselves of these rights, to the exclusion of plaintiffs. It should be here noted, however, that Mr. Dornan, from whom defendants purchased their tract, testified in behalf of defendants that he was unable to state where he claimed the boundary to be. He, at first, said it ran along the east side of the creek. Later in his testimony he said that the southeast corner of defendants' farm was 250, possibly 200, feet west of the road and about 20 feet, as he remembered, west of the creek. The record does not establish with any degree of certainty the location of the line as either Mr. Dornan claimed or defendants now claim it to be.

Plaintiff Eugene A. Mooney testified that the southwest corner of the tract, as claimed by him, is marked by an old blue ash tree yet standing as a 'witness tree' and that 'there was a pile of rocks there at one time for a corner.' That corner is 750 feet west of the road. A line run northward at right angles from that point for a distance of 2,706 feet marks the northwest corner of the tract claimed by plaintiff. That corner is 460 feet...