Stumpe v. Kopp

• Decision Date: 22 February 1907
• Parties: STUMPE, Appellant, v. KOPP
• Court: Missouri Supreme Court

99 S.W. 1073

201 Mo. 412

STUMPE, Appellant, v. KOPP

Supreme Court of Missouri, Division One

February 22, 1907

Appeal from Franklin Circuit Court. -- Hon. Wm. A. Davidson, Judge.

Affirmed.

Jesse H. Schaper for appellant.

(1) The trial court committed error in admitting in evidence the statements of witness Thias to the effect that the warranty deed dated August 29, 1898, from Kopp to Thias, was an agreement to secure a debt owing by Kopp to Thias. The error is that the court permitted verbal evidence to be admitted to vary or contradict a valid deed, containing covenants of general warranty, which by its terms is wholly free from uncertainty as to its object or extent. The effect was to substitute a new and different contract for the one embodied in the deed itself. Greenleaf on Evidence (14 Ed.), sec. 275; Laclede Construction Co. v. Moss Tie Co., 185 Mo 25. (2) Conforming to an erroneous line, while in good faith believing it to be the true line, and intending to claim only to the true line, estops no man from claiming to the true line whenever it is afterwards ascertained. Patton v Smith, 171 Mo. 243; 4 Am. and Eng. Ency. Law (2 Ed.) 872; 1 Jones on Real Prop., sec. 356; Kincaid v. Dormey, 51 Mo. 552; Knowlton v. Smith, 36 Mo. 513; Schad v. Sharp, 95 Mo. 579. It is impossible for defendant to maintain this defense under his answer asserting paramount title to the land adjoining plaintiff on the north, in the face of the undisputed proof that defendant Thias is and was the owner in fee of all such land at and before the commencement of this suit. (3) There was no substantial evidence in the case to support the verdict of the jury. Westmeyer v. Gallenkamp, 154 Mo. 36; Brown v. Hartford, 173 Mo. 194; R. S. 1899, sec. 866.

O. E. Meyersieck for respondent.

(1) Where adjoining proprietors of land are both ignorant as to the location of the true line between their respective lands, and they fix and agree upon a boundary line and take possession in accordance with such agreement, it is binding not only on the parties to such agreement but also on all persons claiming through or under them. Ernsting v. Gleason, 137 Mo. 594; Goltermann v. Schiermeyer, 111 Mo. 422; Jacobs v. Mosely, 91 Mo. 457. Such agreement may be shown by facts and circumstances as well as by direct evidence. The long and continued occupancy and acquiescence in location of boundary line, and the acts of the parties treating the same as the true boundary line, will authorize the jury to infer an agreement between the parties establishing such line. Turner v. Baker, 64 Mo. 218; Schwartzer v. Gebhardt, 157 Mo. 99. The building and maintaining of the division fence, in the manner the fence mentioned in the evidence in this case was built and maintained, is strong evidence of such agreement. Possession and use up to such line is evidence of such agreement. Schwartzer v. Gebhardt, 157 Mo. 99. And where the possession up to the fence under an apparent claim of ownership has been held for more than ten years, the burden is on the plaintiff to show that the holding was subject to future ascertainment of the true line. Lemmons v. McKinney, 162 Mo. 531. This the plaintiff did not show by any evidence in the case. (2) The court did not err in admitting statements of Niederholtmeyer on the question of boundary. This class of cases comes within the exceptions to the hearsay rule. 1 Greenleaf, Evidence (13 Ed.), sec. 1452; 4 Am. and Eng. Ency. Law (2 Ed.), 850. Defendant has had open, notorious, exclusive and adverse possession so long that the evidence as to same comes within the rule applicable to ancient boundaries.

OPINION

LAMM, J.

Stumpe and Kopp are neighbors in Franklin county, owning farms coterminous with each other -- Stumpe in section 24, township 44, range 2, and Kopp in section 13, bordering on the north. There is an ancient rail fence dividing the possessions of one from those of the other -- a partition fence. After this fence was built, time flew by and Kopp's part ran down at the heel -- fell into decay. Thereat as the fence fell down, these neighbors fell out and a squabble arose over the mending of this fence. Thereat Stumpe, on March 5, 1903, procured Mr. Moore, the surveyor of Franklin county, to run the line between said sections 13 and 24. Moore's line showed Kopp had one and four-fifths acres of Stumpe's land in his field. Thereat Stumpe laid claim to it. Kopp, being in possession and claiming the land as his, denied Stumpe's title. Thereupon Stumpe sued Kopp and one Thias in ejectment, was cast below (on a jury trial) and appeals here.

The parcel of land in dispute is described as: "A strip of land off of the north side of the northwest quarter of the northeast quarter of section 24, township 44, range 2, said strip of land being of the width of seventy-five feet on the west end thereof, and of the width of forty-five and one-half feet on the east end thereof." From a third to one-half acre is in cultivation, and the balance does not lie to the plow. It is worth little, and its rental value is put at $ 2.50 per annum on Stumpe's own estimate; so that the litigation may be justly designated as, "Much Ado About (little or) Nothing" -- literally, a fuss.

The petition is in conventional form, laying the ouster as of March 6, 1903.

Defendant Kopp alone answered; and his defense was: (1) a general denial, (2) adverse possession for more than ten years, and (3) an agreed line, to-wit, the line of said old rail fence, which line, the answer said, was established by agreement more than twenty years before by plaintiff's and defendant's grantors; that the fence was built on said agreed line and defendant claimed the land up to said line for more than twenty years, had made valuable improvements and had occupied and claimed said strip of land for said four lustrums without objection on the part of plaintiff's grantors. Wherefore, defendant says, plaintiff is estopped from making any claim to said land.

I. At the trial plaintiff introduced evidence showing a complete paper title to the whole of the northwest quarter of the northeast quarter of said section 24 from an original Spanish grant to one Mackay, confirmed by a United States government survey, through mesne conveyances down to him. He also introduced the survey of Mr. Moore, as aforesaid, and other surveys (one in March, 1873, and one in November, 1878) showing that the strip of land in dispute, bounded on the north by the Moore line and on the south by the rail fence, lay within the bounds of said northwest quarter of the northeast quarter and his proof was further of such character that, among other instructions, the court felt constrained to give him the following:

"The court instructs the jury that plaintiff, William Stumpe, has shown by the deeds and title papers read in evidence that he is the owner of the record title from the United States Government to date of the northwest quarter of the northeast quarter of section 24 in township 44, range 2 west, in Franklin county, Missouri, including the land described in the petition in this suit."

Closely read, it will be seen that the force and effect of this instruction was to declare Moore's line the true line; and its force was further to make a prima facie case for plaintiff. In this condition of things plaintiff complains of the introduction of certain documentary evidence which tended to show that the true line was a line run in August, 1873, by one Wilhelmi, which line agrees practically with the rail fence. All this came about in this way: As we gather from the record, there was a dispute in 1873 between defendant's father, Charles T. Kopp, who then owned defendant's land, and one Niederholtmeyer, who then owned plaintiff's land. As a sequel thereto, it was discovered that certain Government corners were lost; and the then adjoining proprietors paid the expense of what is called in the record a "field court" to re-establish these lost corners and thereby establish the true line. This field court, ostensibly, seems to have been held under Revised Statutes 1899, chapter 59, entitled, "On the Perpetuation of Testimony" -- that is, article 2 of said chapter entitled, "Establishing Land Boundaries." [See 2 Wag. Stat. 1872 p. 994, secs. 22, et seq.] But if notice was given of the taking of depositions by said field court, as required by the statute, if depositions were taken, signed and filed and properly certified by two disinterested justices, and if a survey was made in accordance with said depositions and a certificate and plat thereof executed, and the same, with said depositions, etc., recorded in the recorder's office as contemplated by that statute, no attempt was made to show such facts by defendant. But defendant did offer and was allowed over plaintiff's objection (and exception saved) to introduce in evidence the record of a certificate and plat of survey, found in a book kept by the surveyor of Franklin county, and called survey No. 97, in which certificate the acting surveyor (Wilhelmi) refers to depositions taken before two justices of the peace of Franklin county, naming them, on May 14th, 1873. He further certified that he ran a line in accordance with said depositions; and it seems the line so ran and the corners thus re-established agree with the line of said rail fence substantially.

It will not be necessary to set forth plaintiff's objections to survey No. 97, nor consider them by or large. In our opinion the record of the survey might have been properly excluded strictissimi juris, if for no other reason than that such survey did not purport to be the official act of the county surveyor, but seems to have been the act of Wilhelmi, who (naming no principal) signs himself "Jul. Wilhelmi, D. C. S." Hence,...