Steele et al. v. Allison

• Decision Date: 18 June 1934
• Docket Number: No. 5348.,5348.
• Parties: D.C. STEELE, R.F. McCREERY AND R.O. HARMON, APPELLANTS, v. LUTHER, I. ALLISON, RESPONDENT.
• Court: Missouri Court of Appeals

73 S.W.2d 842

D.C. STEELE, R.F. McCREERY AND R.O. HARMON, APPELLANTS, v. LUTHER, I. ALLISON, RESPONDENT.

No. 5348.

Springfield Court of Appeals. Missouri.

June 18, 1934.

Motion for rehearing denied July 30, 1934.

Appeal from the Circuit Court of Butler County. — Hon. Robert I. Cope, Judge.

AFFIRMED.

Orville Zimmerman and Wammock & Cooper for appellants.

W.L. Proffer for respondent.

BAILEY, J.

This is a suit in equity to enjoin defendant from trespassing upon lands alleged to be owned by plaintiffs. The petition states that plaintiffs, D.C. Steele and R.F. McCreery were and are the owners of the West fractional half of Section Seven, in Township Seventeen, Range Eight, East, in Dunklin County, Missouri; that plaintiff R.O. Harmon is the tenant of said plaintiff owners; that they were at all times thereinafter mentioned and still are in possession of said real estate; that they have made valuable improvements on said land, consisting of the building of residences, clearing land, building fences and cultivating about one hundred acres thereof; that defendant, Luther Allison, has no right, title or interest therein, but that he is threatening and attempting to get possession of said real estate and to drive plaintiff, R.O. Harmon from said real estate and deprive plaintiffs of the use and value of said lands; that in attempting to carry out said purpose defendant has been trespassing upon said farm and continues to do so; that said trespasses and threats deprive plaintiffs of the peaceable possession of said land and will continue to do so; that said defendant is wholly insolvent and plaintiffs have no adequate remedy at law, wherefore an injunction against the defendant is prayed.

In his amended answer defendant admits that he is in possession of Lots 1, 2, 4 and 5 of said Section Seven, but denies that plaintiffs are now or were at any time alleged in the petition in possession of said lands; denies that plaintiffs have made any improvements on said lands; denies that defendant has committed any trespasses and denies each and every other allegation in said petition contained.

Defendant further alleged that he entered upon and took possession of said land, on August 4, 1927, and began making improvements thereon consisting of a dwelling house on Lot 5, a log barn, chicken house, cleared a part of the land, built fences, etc., and has been in the open and continuous possession of said land since the fourth day of August, 1927, and owns and claims title thereto by reason of having filed his application for homestead on said lots, with the United States Department of the Interior, General Land Office, in Washington, D.C., on December 18, 1930, and by paying the required fee and now holds the receipt therefor; that said application was made in pursuance to an order of the Land Office of the Interior Department, opening certain lands in Dunklin County, including the lands herein described; that defendant now holds possession of said lands under color of title from the United States Government; that plaintiffs have a complete and adequate remedy at law and prays that the temporary restraining order, issued on plaintiff's petition, be dissolved and the writ denied.

In their reply plaintiffs allege that the land intended to be described are Lots 4, 7, 8, 9 and 10 and that part of Lot 2 South of Ditch No. 4, in said Section 17; that said lands were erroneously omitted from the original survey made by the United States in 1849; that Dunklin County acted upon the belief that said lands were swamp and overflow lands as were contemplated by the Act of Congress of September, 1850, and passed to the State of Missouri, without a patent from the United States; that Dunklin County, after having the lands surveyed, sold said lands and plaintiffs became the mesne grantees of said lands from Dunklin County. The reply contains other allegations, as follows: "Further replying plaintiffs say that the General Land Office of the United States has caused said lands so omitted from the original survey to be surveyed and is now proceeding to a determination of the character of the said land on September 28, 1850, and to determine whether said lands were on September 28, 1850, in fact swamp and overflowed lands as contemplated by the Act of September 28, 1850, or whether said lands were not on that date swamp and overflowed lands and are now a part of the public domain and are public lands subject to be homesteaded.

For a further reply, plaintiffs say that by an order of D.K. Parrott, Acting Assistant Commissioner of the General Land Office of the United States at Washington, D.C., a hearing was ordered in the case of State of Missouri, plaintiff's remote grantor, v. Luther I. Allison, to be held at nine o'clock A.M., on October 29, 1931, before H. Sam Jones, a Notary Public, at his office in the Bank of Senath building, at Senath, Missouri, that said hearing was commenced and has been adjourned from day to day and from time to time and is now set for completion on Wednesday the 23rd day of March, 1932, with a view to determine the character of lots one (1), two (2), four (4) and five (5) in Section Sevent (7), Township Seventeen (17)...