Three Way Land Co. v. Wells

• Decision Date: 05 March 1945
• Docket Number: 39199
• Parties: Three Way Land Company, A Corporation, and W. L. Taylor, Respondents, v. C. C. Wells, Appellant
• Court: Missouri Supreme Court

185 S.W.2d 795

Three Way Land Company, A Corporation, and W. L. Taylor, Respondents, v. C. C. Wells, Appellant

No. 39199

Supreme Court of Missouri, First Division

March 5, 1945

From the Circuit Court of New Madrid County Civil Appeal Louis H Schult, Judge

Affirmed

OPINION

Hyde J.

This is a suit to try and determine title to land in New Madrid County, with a count in ejectment. Defendant also claimed title and asked, as affirmative relief, the determination of the title. The court found for plaintiffs, adjudging title to the strip of land in controversy, which the court found to contain 12.36 acres, and for possession and damages. Defendant has appealed.

In 1934, the Southeast Missouri Farms, Inc. was the owner of all of Section Three, Township Twenty-three, North, Range Thirteen, East, lying east of the center line of Otter Slough Ditch. This company was the common source of title. It conveyed the north half of Section 3 east of the Ditch to A. Guiling (through whom plaintiffs claim) on October 9, 1934. It conveyed the south half of Section 3 east of the Ditch to defendant on December 29, 1934. The land in controversy is a strip between the two farms, which plaintiffs claim is in the north half of Section 3. Guiling sold to P. M. Barton who conveyed to plaintiff, Three Way Land Company. The Land Company commenced this action October 1, 1941 but sold to plaintiff Taylor May 18, 1942. He was made plaintiff in an amended petition filed in 1944.

Plaintiffs proved the record title and rental value and rested. Defendant testified that he claimed the north boundary of his land was a fence row along which there was also a ditch. He said the agent of his grantor showed it to him as the line. He also testified: "After I bought this land from the Southeast Missouri Farms I built half of the fence on the west end and Mr. Guiling built the fence on the east end of the old fence row, in 1935." Later this fence was torn down and trees taken off. Defendant said he did not consent to it being torn down and did not know who did it. He also said that he and Guiling both cultivated to that line and that they "agreed to build a fence on the old fence line like it was." However, he admitted that "about 1936 Guiling told me that he felt like he didn't have all of his land on the north side and I should let him come down on my side and get more land." Defendant also had evidence that the fence row and ditch to which he claimed had been there ever since about 1912; and that the land was rented by the Southeast Missouri Farms as separate tracts on each side of that line.

Plaintiffs in rebuttal called Guiling who said he authorized a new fence to be built on the old fence line, taking it for granted that it was the line without making a survey, but "later came into possession of facts which led me to think there was something wrong about the location." (The agricultural program survey showed his land short.) He said he told defendant he "thought the line was further down south down in his field there, a couple hundred feet or better"; and that he had a survey made in 1938 which showed this to be true. He then asked defendant "if he would be willing to move the fence down where the surveyor showed the line was and he said he wouldn't." However, Guiling sold to Barton in 1939 and he (also a rebuttal witness) said that he negotiated with defendant about moving the fence back to the true line. Barton was interested in the Three Way Land Company and conveyed title to it before this suit was commenced. Plaintiffs also called the County Surveyor who made the 1938 survey. His survey showed that the old fence row was 200 feet north of the true line.

Defendant cannot claim by adverse possession because this suit was brought in less than ten years after his possession began. Defendant, of course, cannot gain any benefit from anything done by the Missouri Farms, Inc., since it was the common source of title and conveyed each tract by description based on the true halfsection line. Defendant seems to base his claim on an agreed boundary...