Norton v. Kowazek

• Decision Date: 12 March 1917
• Docket Number: No. 17727.,17727.
• Parties: NORTON v. KOWAZEK et al.
• Court: Missouri Supreme Court

193 S.W. 556

NORTON v. KOWAZEK et al.

No. 17727.

Supreme Court of Missouri, Division No. 1.

March 12, 1917.

Appeal from Circuit Court, Lincoln County; B. H. Dyer, Judge.

Action by John Norton against William Kowazek and another. From a judgment for defendants, plaintiff appeals. Reversed, and cause remanded.

Robert L. Sutton, Grover C. Huston, and Frank Howell, all of Troy, for appellant. R. H. Norton and Avery, Young, Dudley & Killam, all of Troy, for respondents.

BLAIR, J.

In the Lincoln circuit court appellant began this action. After an adverse judgment, he brings the case here. The petition contains two counts, one in ejectment and one to quiet title under section 2535, R. S. 1909. The answer is a general denial. The land in dispute is part of what the witnesses call "the island." Part of it is located in section 10 and part in section 15, township 49, range 2 west, in Lincoln county. The island lies between the present main channel of the Cuivre river, on the north, and a slough or depression, on the south. Somewhat more than 700 feet south of the northwest corner of section 15 (which is also the southwest corner of section 10), the river enters that section; and thence flows north 62½ degrees east, 318 feet, to a ford; then the main channel turns to the northeast and flows in that general direction until it crosses the section line between sections 10 and 15; thence it gradually changes its course to a more easterly direction until it reaches bluffs; and thence flows in a southeasterly direction, and again crosses the same section line, passing back into section 15. The slough or depression referred to extends from the ford, in a comparatively direct line, to the point on the section line between sections 10 and 15, where the river re-enters section 15. Its mean direction is approximately east-north-east. The bend in the river may be regarded as an arc of which the slough is the chord. The segment thus formed is the island. The section line between 10 and 15 divides the island into two parts. That part between this section line and the river, on the north or northwest, may be referred to as the "north tract"; that part between the section line and the slough on the south, and west of the line separating the east and west halves of the northwest quarter of section 15, may be referred to as the "south tract." These two parcels, only, are in dispute. That part of the island south of the section line, north of the slough, and east of the quarter quarter section line mentioned is not involved.

Appellant's deed calls for all that part of the northwest quarter of section 15, township 49, range 2, lying south of Cuivre river. Respondent's deed calls for "all of the northwest quarter of the northwest quarter of section 15 lying north of Cuivre river and containing six acres." The tract north of the present channel of the river, as above described, contains about six acres. This is not in dispute. The "south tract" of the island contains about seven acres. Appellant claims record title to five undivided one-sevenths of the whole of the west half of the northwest quarter of section 15, except that part north of the present main channel of the Cuivre, and has color of title to the whole interest therein excepting the same parcel. He has been for 20 years in actual possession of nearly all of the 80 covered by his deed, and asserts he has been in both constructive and actual adverse possession of the south tract of the island for the statutory period and more, and in actual possession of the north tract of the island for such time and in such manner as to vest title in him.

Respondent Wm. Kowazek claims title, by actual adverse possession, of the land in dispute. He also contends there is evidence warranting a finding that the call in his deed for the part of the northwest quarter north of the Cuivre referred to the slough as the river. If this is true, he has color of title to all the land in dispute. Otherwise, he has color of title to the north tract but none to the south tract. The apparently overwhelming weight of the evidence is that the slough never was the main channel of the river. Two witnesses testified to the contrary.

Benedict Kowazek claims only as tenant of his father, respondent William Kowazek. There is evidence he entered as tenant of appellant and subsequently attorned to respondent William Kowazek.

The questions presented concern the sufficiency of the evidence, rulings in admitting and excluding evidence, and the instructions. Other facts appear in the opinion.

I. Appellant contends there is no evidence either Cannon, Cannon's heirs, Monroe, or respondents ever had possession such as to vest title, but insists there was evidence he, himself, had such possession. Respondents contend exactly the contrary is true.

There was no showing David Cannon had color of title. There is no showing his heirs had possession of the island after his death. There was evidence David Cannon occupied the land north of the present main channel of the Cuivre from 1870 or 1872 until his death, which occurred after 1892 and probably about 1899. There was evidence he claimed to own part of the island, and other evidence he claimed the whole of it; that he and his sons, acting on his claim of right, cut wood and ax handle timber off this island; that he made and sold ax and maul handles in considerable quantities, made from wood from the island, cut sawlogs and used part of the lumber sawed therefrom and sold part of it, burned the driftwood, and "did anything they wanted to do over there"; that no one except Cannon had any possession or exercised any control over the island during that time; that Cannon and his family habitually got wood from the island and burned the driftwood when it accumulated; that the island, during this period, was not susceptible of profitable cultivation even had it been cleared; that Cannon claimed the island all the time during the period mentioned, and appellant was advised of this claim before he purchased and, prior to his purchase, was told by Cannon that the line was along the slough south of the island; that appellant's predecessor in title or possession also knew of Cannon's claim and use of the island. There was also evidence to the contrary.

Respondent's immediate grantor, Monroe, whose rights, if any, were acquired in 1900, and who, as shown by his deed, sold to respondent in 1906, when asked what use he made of the island, answered: "Well, I never made any use of it, only I burned the drift on it three or four times, that is, the first year I was there;" that he hauled driftwood out of there one time; that it was wild land, and he got dry wood out of the drift several times; that when he sold to respondent he told him his line included the land in suit. There is evidence Monroe, in effect, admitted he had no claim to the island. This he denies and says he claimed the island.

Respondent testified he claimed only the land covered by his deed and had the Brown survey (in evidence) made to see what part of the island was his and what part was respondent's. On redirect examination, he testified he claimed "this land in section 15"; that Monroe put him in possession; that Monroe did not show him the line at the time he sold to him and put him in possession, but had shown it to him previously.

Ben Kowazek testified he cultivated part of the island four years, beginning in 1909; that he arranged with both his father, respondent, and with appellant, each as to his part. He said he did not know until after the survey which part each owned. In 1911 he left about one-third of the corn, raised south of the section line, for appellant, and took all the corn north of the section line.

There was evidence tending to show appellant, after getting his deed and taking possession of most of the W. ½ N. W. ¼, 15-49-2, in 1892, sold the timber off the island, and that it was denuded of saw timber by appellant's vendees during the winter of 1892-93; that appellant began to clear up the island, cutting off smaller timber and brush and piling and burning it; that this work was done all over the island and was finished in 1894, the smaller timber and brush being cut and burned and the last of the logs being taken out; that from that time (1894) forward until in 1904 or 1905 appellant continued to keep the island cleaned up, keeping the sprouts cut once or twice a year, and cleaning off brush and logs every year and deadening timber and burning the dead logs; that high water a great number of times deposited drift on the island, and this appellant regularly burned, and all this work he continued until 1904 or 1905; that the first two or three years appellant did his work on the island with a team; that no one except appellant cut any timber on the island during that period; that the island in 1892 and for several years thereafter was lower than it is now and subject to overflow more than it now is and insusceptible of profitable cultivation. There is also evidence appellant was not interfered with by any one with respect to the island.

"Possession which is adverse and also known to the true owner is equivalent to a possession which is adverse and also open and notorious." Dausch v. Crane, 109 Mo. loc. cit. 336, 337, 19 S. W. 61, 64; Allen v. Mansfield, 108 Mo. loc. cit. 350, 351, 18 S. W. 901; Key v. Jennings, 66 Mo. loc. cit. 367. There was evidence Cannon's claim was actually brought home to appellant and his predecessors in title and possession and maintained for more than ten years. There was substantial evidence his possession was such as was adapted to the character of the land. The evidence tended to show that...