Ozark Plateau Land Co. v. Hays

• Decision Date: 15 June 1891
• Citation: 16 S.W. 957,105 Mo. 143
• Parties: OZARK PLATEAU LAND CO. v. HAYS.
• Court: Missouri Supreme Court

16 S.W. 957

105 Mo. 143

OZARK PLATEAU LAND CO. v. HAYS.

Supreme Court of Missouri, Division No. 1.

June 15, 1891.

ADVERSE POSSESSION — ACTUAL OCCUPANCY.

In ejectment, the agreed statement of facts set out that both plaintiff and defendant owned land adjacent to that in dispute; that plaintiff had the better title to the land in dispute, but that defendant had been in actual possession of part of it long enough to acquire title by limitation, if his possession of the part claiming the whole should be held to give him adverse title to the whole tract. Held, that since the agreed statement did not show that plaintiff was in actual possession of the land adjacent to that in dispute, and did show that defendant had actual possession of a part of the tract, claiming the whole, judgment should be for defendant. SHERWOOD C. J., dissenting.

Error to circuit court, Laclede county; W. I. WALLACE, Judge.

This is an action of ejectment in the ordinary form, for the S. ½ of the N. E. ¼ and N. W. ¼ of the N. E. ¼ of section 34, township 34, range 14, in Laclede county. The defense is the statute of limitations, adverse possession under color of title, etc. In the circuit court the cause was submitted on a statement of facts agreed to by both parties. It included a map to indicate the exact location of the disputed land, the material points of which will appear from the annexed diagram:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The agreed case then reads thus: "That for thirty years the plaintiff, and those through whom it claims, have been in uninterrupted and exclusive possession and held the title in fee to the south half of section 27, the south-west quarter of section 26, and the west half of section 35, described in the above map; that both the plaintiff, and those through whom it claims, as well as the defendant, have paid taxes on the land in dispute for more than fifteen years, the land having been doubly assessed; that for the same period the defendant had been in the uninterrupted, undisputed possession, and claiming and owning in fee-simple the east half of the north-west quarter, and north-east quarter of the south-west quarter, and the north half of the south-west quarter, of section 34, in the above map; that on the 25th day of December, 1852, the congress of the United States of America granted to the state of Missouri, for railroad purposes, the land in dispute, viz., the north-west quarter of the north-east quarter, and the south half of the north-east, of section 34, township 34, range 14; that in the following year the state of Missouri by patent conveyed this land to the South Pacific Railroad Company, and that by due and proper conveyance therefrom plaintiff has acquired title thereto, and is entitled to the possession thereof, unless by the facts hereinafter set forth it is precluded, which facts are:

That in the year 1867, the governor of the state of Missouri issued to the defendant a patent for all the lands in dispute; that he had been in possession since a date long prior thereto, to-wit, since the 1st day of January, 1860; that he has inclosed with a fence all that part of the land in dispute situate west and south of the Osage river; that no part of the land on the north or east sides of the Osage river has ever been fenced, and that the fence, on the south and west sides thereof, is about one hundred yards distant from the river bank; that his possession has been uninterrupted, adverse, and notorious; that as to the land in dispute the defendant has claimed title to same under patent from the state of Missouri; that he has cut timber on said land in dispute, and protected the timber from trespassers, and paid taxes on same. It was admitted that the Osage river is not navigable at this point." It was claimed on trial by plaintiff that it was entitled to the possession of all that part of the land in dispute north and east of defendant's fence, and it prayed the court to give the following declaration of law, to-wit: "The court declares the law to be that, under the evidence in this case, the plaintiff is entitled to the possession of all that part of the land in dispute, and described in its petition, situate north and east of defendant's fence." This declaration of law the court refused, and plaintiff excepted. The court gave judgment for defendant, and after the ordinary steps for a review, and exceptions duly saved, plaintiff appealed.

E. D. Kenna and Adiel Sherwood, for plaintiff in error. J. P. Nixon, for defendant in error.

BARCLAY, J., (after stating the facts as above.)

This case was tried upon an agreed statement of facts, and now presents, mainly, questions as to the meaning of that statement. It is conceded that plaintiff has the earlier paper title, and that it is entitled to recover, unless the facts stated give defendant a better right. The statement shows defendant's possession of the disputed land, under color of title, for more than 10 years before this action, and that such possession was "uninterrupted, adverse, and notorious." From other parts of the agreed case it is evident that these words were not intended to imply "actual" possession, for further details of evidence are mentioned, obviously bearing upon that particular point. Defendant's claim to actual possession rests upon his having "cut timber on said land, protected the timber from trespassers, and paid taxes on same." It also appears that defendant has inclosed with a fence a large portion of the land described in the patent, (which forms his color of title,) but not that part which is now the subject-matter of dispute. Plaintiff urges that the defendant's patent, covering the debatable tract, cannot be...