Thomas v. Babb
| Decision Date | 28 February 1870 |
| Citation | 45 Mo. 384 |
| Parties | JOHN THOMAS AND WIFE, Plaintiffs in Error, v. JOSEPH BABB AND WIFE, Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Fifth District Court.
Broaddus & Pollard, and Dixon, for plaintiffs in error.
Where a party claims beyond the true line, through mistake, lapse of time merely does not give the title.
McFerran, for defendants in error.
Instruction No. 9, taken in connection with those given for plaintiffs in error, with reference to the statute of limitations, presented the case properly to the jury on behalf of the plaintiffs in error.
The controversy in this case pertains to a disputed boundary, and plaintiffs bring ejectment to recover possession of a portion of the land of the wife, claimed to be fenced in by the defendant. The title of the plaintiffs to the forty acres, of which it is claimed the disputed parcel is a part, is admitted to be in Mrs. Thomas, and the title to the farm within which the disputed land is inclosed is admitted to be in Mrs. Babb; and it is also admitted that she and her husband had been in possession of the same for more than ten years before the commencement of the suit. The plaintiff employed the county surveyor to locate the land, and, unable to find the original monuments indicating the boundaries of section 5, in which the disputed land lies, he runs lines from known monuments in the north line of the township, five miles south to other monuments, and finds a surplus of some thirteen and a half chains. This surplus he divides among the several sections, which has the effect of making the south line of section 5 over two chains more than a mile from the north line. This adjustment of the lines of the sections and of their subdivisions, throws the division line between plaintiffs and defendants some eight rods south of the division fence. Several questions were raised at the trial by the rejection of evidence offered by defendants, and by refusing instructions asked for by them, which, inasmuch as they obtained judgment, it is unnecessary to consider. But the court, at their instance, gave instruction No. 9, to which the plaintiffs objected, and which must have secured for the defendants their verdict. It is as follows: “If the jury believe from the evidence that the plaintiffs claim title under one Robert McCullough, who, in the year 1857 or 1859, went to what was then supposed to be the south line of plaintiffs' tract, in which the land in controversy is situated, and stuck a stake in the ground on said supposed line, in the presence of the defendant, Joseph Babb; and then and there told the defendant, Joseph Babb, that any improvements made by him south of said line would be safe, or words to that effect; and that afterwards the defendants, or those under whom they claim, made a fence and other improvements south of said line; and that the lands claimed by the plaintiffs are south of, and adjacent to, said supposed line; and that the defendants, and those under whom they claim, have been in continued, open, and notorious actual possession of the lands sued for, for more than ten years before the institution of this suit, then the jury will find for the defendants.”
The defendant, Joseph Babb, who was supported by other witnesses, had testified that in 1857 he pre-empted the land now owned by his wife; that he hauled lumber upon what he supposed was the north end of the lot, in order to make improvements; that Robert McCullough, under whom the plaintiffs claim, came to where he was hauling it; that he had stepped off the distance from the north, and told Babb he was too far north; that he then stepped on some two hundred steps further south, stuck a stick in the ground and said, “If you build south of here, you will be forever safe.” Babb then moved his lumber further south and built his house; he also built his fence upon the line as indicated by the stick, and has ever since occupied up to the fence. McCullough differed somewhat in his description of the occurrence; but there is no dispute that defendants have ever since occupied the land...
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