St. Louis Univ. v. McCune

• Decision Date: 31 March 1859
• Citation: 28 Mo. 481
• Parties: ST. LOUIS UNIVERSITY, Respondent, v. MCCUNE et al., Appellants.
• Court: Missouri Supreme Court

28 Mo. 481

ST. LOUIS UNIVERSITY, Respondent,

v.MCCUNE et al., Appellants.

Supreme Court of Missouri.

March Term, 1859.

1. Where a common field lot confirmed by the second section of the act of Congress of April 29, 1816, has a definite and certain location, the statute of limitations will run in favor of an adverse possession prior to an approved survey by the United States. (Aubuchon v. Ames, 27 Mo. 87, affirmed.)

2. Where a proprietor of land, through mistake or ignorance of the true location of the line separating his tract from that of an adjoining proprietor and with no intention to claim beyond the true line of separation, extends his fence beyond such line and encloses a portion of the land of such adjoining proprietor, the possession thus acquired will not be adverse.

Appeal from St. Louis Land Court.

By the act of Congress of April 29, 1816, a common field lot in the St. Louis Grand Prairie common field was confirmed to the legal representatives of Jacques Labbé. By the same act, the common field lot next south of the lot so confirmed to Labbé's representatives was confirmed to the legal representatives of François Lachapelle. These confirmations were surveyed by the United States. The survey of the Labbé lot is numbered 1587; the survey of the Lachapelle lot 1592. The latter survey was made in 1842 and was approved in 1857. The plaintiff claims title under the Labbé confirmation; the defendants under the other. The plaintiff seeks to recover in the present suit a narrow strip of land about 1,205 feet long, and sixteen feet ten inches wide at one end, and nine feet ten inches at the other, containing about one-third of an acre. This strip lies within the Lachapelle confirmation as surveyed by the United States. The plaintiff introduced testimony showing that it and those under whom it claimed “had had open, continued, notorious, uninterrupted and visible possession of the land sued for, for more than twenty years prior to the entry of defendants, by actual enclosures, and that in March, 1836, the division fence was upon the line claimed by plaintiff as the south line of the land sued for, and that said fence was then old, and had the appearance of having been there many years, and that prior to defendants' entry in 1856, the line had not been disputed, and that plaintiff's possession had been held by the line of the old fence, and that defendants entered and put up the fence on the line of the survey in August, 1856.” There was no evidence showing any agreement as to the line, except the actual possession by the fences, which possession was recognized and acquiesced in by the neighboring proprietors.

The court gave the following instruction at the instance of the plaintiff: “If the jury find from the evidence in this cause that after the confirmations respectively to the representatives of Jacques Labbé and Lachapelle of adjoining tracts of land, Lachapelle's representatives or those claiming under them entered upon the land so confirmed to Lachapelle's representatives, and fixed a boundary between the tracts of land so respectively confirmed to said Lachapelle's representatives and said Labbé's representatives, and marked the same by stones or other monuments, and built a fence along and upon said line, and claimed and occupied only up to said line for more than twenty years, and that the representatives of Jacques Labbé or those claiming under them agreed and assented to said line, and took possession of and occupied the land in question up to the said line for more than twenty years before the commencement of this suit, the plaintiff ought to recover.”

The defendants asked the court to instruct the jury as follows: “1. If the jury believe from the evidence that the defendants are in possession of the land sued for within the lines of survey No. 1592 for F. Lachapelle's legal representatives as made by the United States, and that said survey was made in 1842 and approved March 2, 1857, then the jury will find for the defendants. 2. If the jury believe from the evidence that the plaintiff claimed title to part of survey No. 1587 under Jacques Labbé, and his possession has extended over the line before the survey was made by the United States for defendants, then said possession was not adverse to the title of defendants, as it was a mistake as to the true line. 3. The plaintiff claiming title under the confirmation to Jacques Labbé and survey No. 1587, any possession by plaintiff over the lines of his confirmation will not be adverse to the defendants, claiming under F. Lachapelle's survey No. 1592, until a survey was made by the United States marking out the dividing line between the confirmations of the plaintiff and defendant respectively.” The court refused these instructions, but instructed as follows for the defendants: “4. If the jury believe from the evidence that the possession of the plaintiff of the land sued for was by mistake as to the true line between the parties, their said possession was not adverse.”

The cause was tried by the court without a jury. The court found and rendered judgment for plaintiff.

Field and Whittelsey, for appellants.

I. There was no adverse possession beyond the true line, for the reason that manifestly there was no claim of title beyond that line. Bare possession, unaccompanied with a claim of title, or originating in accident, ignorance or mistake, is not adverse to the true owner. (See Cutter v. Waddingham, 22 Mo. 266; Jackson v. Porter, 1 Paine, 466; ...