Norton v. Kowazek, 17727.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Blair
• Citation: 193 S.W. 556
• Parties: NORTON v. KOWAZEK et al.
• Docket Number: No. 17727.,17727.
• Decision Date: 12 March 1917

193 S.W. 556 NORTON
v.
KOWAZEK et al. No. 17727. Supreme Court of Missouri, Division No. 1. March 12, 1917.

[193 S.W. 557]

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

193 S.W. 558

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...