Rhodes v. Wilson

• Decision Date: 14 March 1922
• Docket Number: No. 22496.,22496.
• Citation: 239 S.W. 113
• Parties: RHODES et al. v. WILSON et al.
• Court: Missouri Supreme Court

239 S.W. 113

RHODES et al. v. WILSON et al.

No. 22496.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from Circuit Court, Wayne County; E. M. Dearing, Judge.

Ejectment by Sherman Rhodes and others against John W. Wilson and others. Judgment for the plaintiffs for all land sued for except five acres, which was awarded to defendants by adverse possession, and plaintiffs appeal. Affirmed.

Wm. A. Settle and V. V. Ing, both of Greenvile, for appellants.

D. N. Holladay, of Springfield, and Arthur T. Brewster, of Ironton, for respondents.

SMALL, C. I.

Appeal from the circuit court of Wayne county. Suit in ejectment for 12 acres of land, being all of a 40-acre tract which lies east of the St. Francois river. Plaintiffs had judgment for all land sued for except about 5 acres, which the court found the defendants had title to by adverse possession, as claimed in their answer. The evidence tended to prove the following facts:

Plaintiffs and defendants owned adjoining farms. The St. Francois river ran through said 40 acres far enough west of the east line thereof to leave the 12 acres sued for on the east side of said river. Plaintiffs owned the record title to said 40 acres, including said 12 acres, but had never inclosed or used said 12 acres as part of their farm, which included other adjoining land on the west side of said river or otherwise. John W. Wilson and his father before him for many years owned a farm opposite plaintiffs on the east side of the said river adjoining said 40 acres. The land included in said 12 acres was low and gravelly, and more or less timbered, and unfenced and unused except by said Wilson, who for more than 10 years before this suit was filed paid taxes on, fenced, occupied, claimed, cleared, and cultivated about 5 acres thereof, which was recovered by the defendants under their plea of adverse possession.

The evidence shows without contradiction that both plaintiffs and said Wilson thought the middle of the river was the true boundary line. Plaintiffs rented the stock pasture on Wilson's farm for a number of years, including said five acres. No question or dispute was ever had as to Wilson's ownership of the land east of the river until 1917. Plaintiffs then had their farm surveyed, and the survey showed that the 12 acres sued for was part of the 40 acres included in their deed. On being informed of the survey and plaintiffs' claim, Mr. Wilson disputed the accuracy of the survey, stating that the river was the boundary line. He thereupon procured another survey to be made by another surveyor, who found the lines properly located by the survey made for plaintiffs. Still Wilson protested the river was the line, and told one of the plaintiffs he would have "a hell of a time" getting the 12 acres, although he had previously stated to one witness for plaintiffs, who took part or was Present while the survey was being made, that he only wanted what belonged to him; only wanted what was called for by his deed. The portion of the land sued for recovered by plaintiffs had never actually been fenced up or inclosed by Wilson at all, or for less than 10 years before the institution of the suit. 3efore the trial, and shortly after the suit was brought, Mr. Wilson died, and his widow and children, all minors, were made defendants in his stead. Jury was waived and the case was tried by the court. The plaintiffs asked the following declarations of law, which were refused:

"I. The court declares the law to be that, if the defendants took possession of the land in controversy in good faith, believing that the St. Francois river was the true line between the land of the plaintiff and the farm of John W. Wilson, and intending to claim only to the true line, and if the court finds from the evidence that the St. Francois river is not the true line between the farm of John W. Wilson and plaintiffs' land, then the possession of the land held by defendants is not adverse to the title of the plaintiff, and the plaintiff is entitled to recover against the defendants as to all the lands east of the St. Francois river in the northwest quarter of the southeast quarter of section 11, in township 28 north, of range 5 east, described in the amended answer of the defendants.

"II. The court declares the law to be that it is not enough to constitute and vest title to the lands in controversy in defendants that they have held the land for more than 10 years in actual, open, visible, exclusive, uninterrupted, and continuous possession, claiming to own the land and have a right to such possession, prior to the ____ day of July, 1917, the date when plaintiffs' action herein was instituted, but, in addition to the establishment of such possession, it was incumbent on the defendants to prove by a preponderance of the evidence admitted in the trial of the case that they so held the land claimed by them under claim of ownership to the St. Francois river, or at least to the line claimed by them in their amended answer filed in the cause, regardless of whether or not such river or the said line claimed to in the said answer be the true line between the farm of John W. Wilson and the land of the plaintiff. And, unles it has been proven by the evidence in the case that the defendants took possession of the lands claimed by defendants with the intent then in the mind to claim and hold the land so taken, regardless of whether or not the said river or the line claimed to in their amended answer is the true line, and that they held the land taken for 10 years or more before the suit herein was instituted, to wit, before the ____ day of July, 1917, under the same claims and with the same intent and purpose—that is, under claim of right, and with the intent to hold it regardless of where the true line really was and is—then the possession held by defendants was not, and is not, adverse to plaintiffs' title and rights, and defendants cannot recover on their claim of title by limitation set up in their amended answer, and the plaintiff is entitled to recover against all the defendants."

As before stated, the court found for plaintiffs as to all the 12 acres except the 5 acres, which it found defendants had acquired by adverse possession. Plaintiffs, failing to obtain a new trial, appealed to this court.

II. This is a disputed boundary case. In such cases, if the defendant for the statutory period possessed and claimed the land to a given line, intending to claim only to the...