Norman v. Summerfield-Jones Const. Co.

• Citation: 18 S.W.2d 559
• Decision Date: 23 May 1929
• Docket Number: No. 4518.,4518.
• Parties: NORMAN et al. v. SUMMERFIELD-JONES CONST. CO.
• Court: Missouri Court of Appeals

18 S.W.2d 559

NORMAN et al. v. SUMMERFIELD-JONES CONST. CO.

No. 4518.

Springfield Court of Appeals. Missouri.

May 23, 1929.

Rehearing Denied July 1, 1929.

Appeal from Circuit Court, Douglas County; Fred Stewart, Judge.

Action by J. P. M. Norman and another against the Summerfield-Jones Construction Company. Judgment for plaintiffs, and defendant appeals. Transferred from Supreme Court. 4 S.W.(2d) 1064. Reversed.

Page & Barrett, of Springfield, and J. S. Clarke, of Ava, for appellant.

Green & Green, of West Plains, and Lz Banta, of Ava, for respondent.

COX, P. J.

Action for compensation for certain gravel taken by defendant and used in the construction of a state highway in Douglas county, near Ava. Plaintiffs recovered, and defendant appealed. Plaintiffs claimed to be the owner of the land where defendant got the gravel. Defendant claimed to have gotten permission to get the gravel from Mr. C. A. Harnden, who said he owned the land and gave defendant permission to take the gravel.

It seems that both plaintiff and Harnden were each sincere in the belief that he owned the land. The burden of proof was on plaintiffs to show that they owned the land, for their right to recover rests upon that ownership, and, if they have failed to prove ownership, their case fails. It was agreed that J. W. Hoffman was the common source of title to the land in question. The gravel was taken from the southeast quarter of the southeast quarter, section 32, township 27, range 16. Cowskin creek crossed at least a part of the southwest quarter of the southwest quarter, section 33, and southeast quarter of the southeast quarter, section 32, and Hoffman owned 40 acres in section 32 and all of the 40 acres in section 33 north of the creek, except 8 acres. In April, 1857, Hoffman conveyed to J. B. Williamson that part of the southeast quarter of the southeast quarter, section 32, "lying south of the middle of the main channel of Cowskin creek where it now runs, * * * containing five acres more or less." About the same time Williamson conveyed to Hoffman the eight acres north of the creek in the southwest quarter of the southwest quarter, section 33, not previously owned by Hoffman. These deeds made the creek the line between these parties. It is conceded that the gravel was taken from a point south of the middle line of Cowskin creek as the creek was located in 1857, when these deeds were made.

Plaintiffs' claim to ownership in the gravel is based on the fact that Cowskin creek afterward changed its course and the channel of the creek moved further south, so that, at the time the gravel was taken by defendant, it was then on the north side of the channel of the creek, and plaintiffs base their claim of ownership to the gravel upon the fact of the change of location of the channel of the creek. Plaintiffs have not shown title by deed from Hoffman by mesne conveyances to themselves; neither does the evidence show title by adverse possession. Nothing is shown as to adverse possession, except that at one time plaintiffs hauled gravel from about the same place and used it in a building; but actual possession, or such acts of ownership as to convey notice to the world of the claim of title, is not shown. All the evidence shows upon the question of title by limitation, other than the one act above noted, is that the channel of the creek changed more than 10 years ago, and that they always claimed to the center of the channel of the creek, and when the channel of the creek changed they claimed the line of their land changed with the creek channel, and when the channel changed, so that it ran south of the place where the gravel in controversy was located, their line changed with it. To substantiate that claim of title, they would have to show that the change in the channel resulted in the gravel being added to their land by accretion,...