Randolph v. Fricke

• Decision Date: 02 February 1931
• Citation: 35 S.W.2d 912
• Court: Missouri Supreme Court
• Parties: A.M. RANDOLPH, Appellant, v. EDWARD FRICKE.

35 S.W.2d 912

A.M. RANDOLPH, Appellant, v. EDWARD FRICKE.

Supreme Court of Missouri.

Court en Banc, February 2, 1931.^*

Appeal from Saline Circuit Court. — Hon. Robert M. Reynolds, Judge.

AFFIRMED.

Roy B. McKittrick and Grover & Graves for appellant.

(1) A motion for judgment on the pleadings admits the truth of all well pleaded facts in the pleadings of the opposing party, and every reasonable inference in his favor that is deducible from them. State ex rel. v. Wurdeman, 311 Mo. 64, 277 S.W. 571; State v. Goffee, 192 Mo. 670; State ex rel. v. Guinotte, 282 S.W. 68; Sternberg v. Levy, 159 Mo. 617; Butler v. Lawson, 72 Mo. 227; Kemper v. Berkley, 79 Mo. App. 578; 31 Cyc. 606, note 28. (2) The middle of the main channel of the Missouri River was fixed by the Constitution of 1875, as the boundary line between Chariton and Saline counties. Constitution, art. 9, secs. 1, 3, 4: 1 Wagner's Statutes 1872, pp. 375, 368; Randolph v. Moberly Hunting & Fishing Club, 15 S.W. (2d) 834; Nothstine v. Feldmann, 8 S.W. (2d) 916; Akers v. Stoner, 7 S.W. (2d) 696; Jacobs v. Stoner, 7 S.W. (2d) 702; Hecker v. Bleish, 3 S.W. (2d) 1008; State ex rel. v. Huffman, 2 S.W. (2d) 582; Nothstine v. Feldmann, 250 S.W. 593; State ex rel. Steele v. Baker, 129 Mo. 486; Alluvial Realty Co. v. Heimnel, 229 S.W. 762; 15 C.J. 396, note 10. (3) The middle of the main channel of the Missouri River as it existed at the time of the avulsion in 1879 is and remains the boundary between Chariton and Saline counties. Randolph v. Moberly Hunting & Fishing Club. 15 S.W. (2d) 834; Nothstine v. Feldmann, 8 S.W. (2d) 916; Akers v. Stoner, 7 S.W. (2d) 696; Jacobs v. Stoner, 7 S.W. (2d) 702; Hecker v. Bleish, 3 S.W. (2d) 1008; State ex rel. v. Huffman, 2 S.W. (2d) 582. (4) Defendant contends that estoppel or laches arising through the action or non-action of officers and others of Saline and Chariton counties fix the extent and jurisdiction of said counties. (a) The facts admitted in the reply are not sufficient to constitute an estoppel in pais. Hecker v. Bleish, 3 S.W. (2d) 1018; 21 C.J. 1249, note 261; Blodgett v. Perry, 97 Mo. 272; Doe Run Lead Co. v. Maynard, 283 Mo. 677; Acton v. Dooley, 74 Mo. 67; Leckie v. Bennett, 160 Mo. App. 162; Thomas v. McDonald, 287 S.W. 445; Kinsolving v. Lumber Co., 300 S.W. 508. (b) This is a legal action. The facts admitted are with respect to a county and are based upon laches; laches does not lie as a defense to a legal action of this character. Hecker v. Bleish, 3 S.W. (2d) 1018; Mullins v. Kansas City, 268 Mo. 460; Hays v. Schall, 229 Mo. 124; Chilton v. Nickey, 261 Mo. 243; Willis v. Robinson, 237 S.W. 1036; Kellog v. Moore, 271 Mo. 193. (c) Assuming the admission of facts containing the proper elements of estoppel and that laches would lie in a legal action, even then the action of Saline or Chariton counties, the parties claiming title to these lands or their privies, or any other parties, has no effect on the fixed extent of these counties, as they were fixed by the Legislature and the Constitution, and can only be changed in the manner provided by law. Hecker v. Bleish, 3 S.W. (2d) 1008; Nothstine v. Feldmann, 8 S.W. (2d) 916; Akers v. Stoner, 7 S.W. (2d) 696; Jacobs v. Stoner, 7 S.W. (2d) 702; Mansur v. Huffman, 2 S.W. (2d) 582; Kinsolving v. Lumber Co., 300 S.W. 508; Thomas v. McDonald, 287 S.W. 445; Senter v. Lumber Co., 255 Mo. 605; Bartlett v. Kauder, 97 Mo. 361; St. Louis v. Gorman, 29 Mo. 599; Board of Commissioners v. Same, 143 Pac. 842; Steckel v. Vancil, 92 Kan. 593; Brace v. State, 95 Pac. 282; Crane v. Reeder, 25 Mich. 320; State v. Portsmouth Bank, 106 Ind. 458; Reed v. State, 74 Ind. 252; Howard Co. v. Bullis, 49 Iowa, 520; Plumb v. Grand Rapids, 81 Mich. 393; County v. Iowa Falls, 46 Iowa, 228; Germert v. Spalding, 104 Wis. 211; State ex rel. v. Brewer, 64 Ala. 298; Ouray County v. San Juan County, 58 Colo. 67; Marshall v. Springfield, 221 S.W. 18; Hooke v. Chitwood, 127 Mo. 376; 1 Wagner's Missouri Statutes 1872, pp. 357, 368. (5) The Constitution of Missouri of 1875 fixed the boundary between Chariton and Saline counties, and provided the only method by which this boundary could be changed. Constitution, art. 9, secs. 1, 3, 4; 1 Wagner's Statutes 1872, pp. 375. 368. (a) The boundary between Chariton and Saline counties has not been changed as provided by the Constitution. (b) The boundary between Chariton and Saline counties as fixed by the Constitution, is superior to and cannot be changed either by judicial construction or statute. The Constitution is the supreme law of the land. Clark v. Mitchell, 64 Mo. 576; Chicago, Burlington & Quincy Railroad v. Chicago, 166 U.S. 226; State ex rel. Mansur v. Huffman, 2 S.W. (2d) 584; 12 C.J. 1188; Cessina v. Tennessee, 246 U.S. 289; Gladney v. Sydnor, 172 Mo. 318; Hurtado v. California, 110 U.S. 516. (c) The Constitution of the United States of America, in the 14th Amendment thereof, and the Constitution of the State of Missouri, guarantee equal protection and due process of the law. Constitution of Missouri, art. 2, sec. 30. (d) Vested rights acquired under the Constitution of the State cannot be denied or abrogated by judicial decisions or statutes. Cases under (b) supra.

S.J. and G.C. Jones, Sasse & Merrell, John D. Taylor, M.J. Lilly and Gilbert Lamb for respondent.

(1) On the facts alleged and admitted in the pleadings, the Circuit Court of Saline County was estopped to have and had no jurisdiction of the subject-matter of plaintiff's petition. Randolph v. Moberly Hunting & Fishing Club, 15 S.W. (2d) 834. (2) On the facts, as made by the pleadings, Saline County and plaintiff are estopped to say that the land described in plaintiff's petition is in Saline County, or that the Circuit Court of Saline County has jurisdiction of the subject-matter of plaintiff's action. Randolph v. Moberly Hunting & Fishing Club, supra. (3) On the pleadings, a hearing and attempt to determine the subject-matter of this action would be and constitute a collateral attack by plaintiff on the recognized territorial boundaries and integrity of Chariton County, and the jurisdiction of its courts and officers. Randolph v. Moberly Hunting & Fishing Club, supra. (4) The fact that the Constitution of Missouri provides how the boundary lines between the counties may be changed does not prevent the application of the doctrine of equitable estoppel in this case. Randolph v. Moberly Hunting & Fishing Club, supra; State v. Rich, 20 Mo. 393; State v. Douglas, 50 Mo. 596; Roane Co. v. Anderson, 89 Tenn. 259; People ex rel. v. Alturas County, 44 L.R.A. 122; People v. Maynard, 15 Mich. 463; Jameson v. People, 16 Ill. 257; State ex rel. v. St. Louis County, 134 N.W. 301; State ex rel. v. Clary, 106 N.W. 109; State ex rel. v. Des Moines, 31 L.R.A. 192. (5) If a law or ruling of a court operates on all citizens alike, under the same circumstances, there is no denial of equal protection nor of due process of law. Dent v. W. Virginia, 129 U.S. 114; Dunican v. Missouri, 152 U.S. 377; Moore v. Missouri, 159 U.S. 673; 6 R.C.L. 369. It is no denial of due process or of equal protection under the law for the courts of this State to hold where actions must be brought. State ex rel. v. Aloe, 152 Mo. 482. Jurisdiction is a state and not a Federal question. Houston v. Pulitzer Pub. Co., 249 Mo. 336.

BLAIR, J.

Action instituted in the Circuit Court of Saline County in two counts, to-wit, in ejectment and to determine title to land said by plaintiff to be in Saline County. Defendant had judgment on the pleadings and plaintiff was granted an appeal to this court.

This is a companion case to Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 995, 15 S.W. (2d) 834, herein referred to as the Moberly case, which was decided by this court February 11, 1929. The case at bar involves land described in the petition as the Northwest quarter of Section 25, Township 53, Range 20, and the Southwest quarter of Section 24, in the same township and range, alleged in the petition to be in Saline County.

The amended answer, filed after the Moberly case was decided, contained a plea to the jurisdiction of the Circuit Court of Saline County, and further alleged certain facts which are all practically admitted in plaintiff's reply to said amended answer. Thereafter defendant filed his motion for judgment on the pleadings and the same was sustained by the trial court. The facts, therefore, appear from the plaintiff's petition and reply.

Plaintiff contends that the motion for judgment on the pleadings admitted that the lands in controversy are in Saline County because the petition so alleged. Said allegation is a mere legal conclusion on the part of the pleader and the contention must be disallowed.

The real facts in the case, for the purposes of deciding this appeal, appear from plaintiff's reply to defendant's amended answer. Omitting customary quotation marks and the exhibits mentioned, we quote from said reply, as follows:

Further, and by way of reply, plaintiff admits that the land aforesaid was first surveyed by the United States Government in the year 1816, at the time of which survey the said Missouri River, at or near the location of the lands aforesaid, flowed in a curve around to the north in the shape of a horse shoe forming a peninsula extending from the County of Saline into the County of Chariton in the State of Missouri, which peninsula extended about four miles to the north into said Chariton County, which said survey is made a part hereof and marked plaintiff's Exhibit 1; that after the year 1816 aforesaid, and in the afflux of time, the force of the water of said river gradually wore away the neck of the peninsula aforesaid on either side thereof and thereby widened the expanse of land towards the northern part thereof; that land was taken into said river on the right and left of said peninsula and accretions were formed and accrued to the land within the peninsula and bend aforesaid; that the...