Tillman v. Hutcherson, 37254.
| Citation | 154 S.W.2d 104 |
| Decision Date | 25 September 1941 |
| Docket Number | No. 37254.,37254. |
| Parties | ALDAH TILLMAN v. EARL N. HUTCHERSON ET AL., Appellants. |
| Court | United States State Supreme Court of Missouri |
v.
EARL N. HUTCHERSON ET AL., Appellants.
[154 S.W.2d 105]
Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED (with directions).
Haysler A. Poague and Barkley M. Brock for appellant.
(1) To make out a claim of adverse possession the plaintiff's predecessors must have claimed "to the fence," and not just "to the true line," Courtner v. Putnam, 30 S.W. (2d) 126; Scad v. Sharp, 95 Mo. 573; Hedges v. Pollard, 149 Mo. 216; and it is presumed that plaintiff's predecessors only intended to claim "to the true line." Hamilton v. West, 63 Mo. 93. (2) In such cases of adverse possession there are two necessary elements: (a) The claimant must actually have occupied the land for the statutory period, and (b), she must have occupied it under claim of title. Battner v. Baker, 108 Mo. 311; Tamm v. Kellogg, 49 Mo. 118; Knowlton v. Smith, 36 Mo. 319; Ware v. Cheek, 201 S.W. 847; Bell v. Barrett, 76 S.W. (2d) 394; Goltermann v. Schiermeyer, 111 Mo. 404. (3) The burden of proof is on the plaintiff to prove both of these elements since she is the one asserting the adverse claim. Nichols v. Tallman, 189 S.W. 1184. (4) If the plaintiff had made out a prima facie case by showing: (a) Actual possession plus (b) claim of title, then the burden of going forward with the evidence would have shifted to the defendants to prove that plaintiff was only claiming "to the true line." Lemmons v. McKinney, 162 Mo. 525; Bryan v. Miller, 252 S.W. 366. (5) Mere use and occupation of the land does not show claim of title. Crawford v. Ahrens, 103 Mo. 88; Courtner v. Putnam, 30 S.W. (2d) 126; Stevenson v. Black, 168 Mo. 561; Bryan v. Millar, 252 S.W. 366; Chostner v. Schrock, 252 S.W. 381; Deirs v. Peterson, 234 S.W. 793. (6) The evidence also failed to show that the predecessors in title of plaintiff and defendant, being mistaken as to the true line, entered into an agreement that the old fence was to be their boundary line. The only evidence produced by the plaintiff was that they had farmed and occupied the land on each side for a number of years. Such an agreement cannot be inferred from the mere fact that they occupied and used the land on each side of the fence. Scad v. Sharp, 95 Mo. 579; Acton v. Dooley, 74 Mo. 63; Engelbrecht v. Dulle, 92 S.W. (2d) 150; Martin v. Hays, 228 S.W. 741; Sands v. Clark, 250 S.W. 58; Wright v. Hines, 287 S.W. 457; Turner v. Baker, 64 Mo. 218; Blair v. Smith, 16 Mo. 281; Ernsting v. Gleason, 137 Mo. 594.
Mark W. Wilson and Elmer B. Silvers for respondent.
(1) The evidence showed that the predecessors in title of both plaintiff and defendants had used the land on their respective sides of the old fence for 50 years, had treated the old fence as the division line, neither had disputed the right of the other to the land on such other's side of the old fence and up to it; therefore, the law raises two conclusive presumptions, viz.: (a) It is presumed and cannot be disputed, by any evidence, that the old fence is the true line. Turner v. Baker, 64 Mo. 218; Bartlett v. Brown, 121 Mo. 353, 25 S.W. 1108; Baldwin v. Brown, 16 N.Y. 359; Reed v. Farr, 35 N.W. 113; Blassigame v. Davis, 68 Tex. 595, 5 S.W. 402; Lindell v. McLaughlin, 30 Mo. 28; 9 C.J., pp. 244-247, secs. 196-199; Sands v. Clark, 250 S.W. 58. (b) It is presumed that the predecessors in title have established the fence as the division line, and the law will not suffer this establishment of the rights of the parties to be disputed, upset or rendered uncertain. And direct evidence of an expressed agreement is unnecessary in such case, as the conduct and acquiescence of the parties are, in themselves, proof of the fact. Stumpe v. Kopp, 201 Mo. 412, 99 S.W. 1073; Ernsting v. Gleason, 137 Mo. 594, 39 S.W. 70. "Such possession and use are evidence that there was an agreement to establish the line not only to corroborate other evidence of such agreement, but even if there be no such other evidence." Brummell v. Harris, 148 Mo. 430, 50 S.W. 93; Wright v. Hines, 287 S.W. 471; Union Twp. v. Cotton Hill Twp., 294 Mo. 538, 243 S.W. 333; Martin v. Hays, 228 S.W. 741; Betts v. Brown, 3 Mo. App. 20; Turner v. Baker, 64 Mo. 218; Jacobs v. Moseley, 91 Mo. 457, 4 S.W. 135. (2) When plaintiff's predecessors in title held possession openly and continuously and exercised ownership over the land up to the old fence, without question by adjoining owners, for 50 years, such possession was adverse and conferred title regardless of where the true line might be. (a) To make possession adverse it is only necessary that it be of such a nature as to indicate claim of ownership. Benne v. Miller, 149 Mo. 228, 50 S.W. 824; Pim v. St. Louis, 122 Mo. 654, 27 S.W. 525. (b) The strongest fact to show plaintiff's possession adverse is that the adjoining owners never disputed it. Rusk v. West, 290 Mo. 433, 235 S.W. 1010. (c) The possession of one who holds property as his own is adverse to all the world, although he never heard of an adverse claim. Edie v. Coleman, 141 S.W. (2d) 238. (d) The cultivation of the land east of and up to the fence for over 10 years by plaintiff's grantors is adverse possession. Nothing more than use and cultivation is necessary to be proved to make a case of adverse possession; it then devolves upon the other claimant to prove that such use and cultivation were conditional upon some subsequent ascertainment of where the line was. But in our case there was no evidence whatever of that kind. Hedges v. Pollard, 149 Mo. 216, 50 S.W. 889. And such evidence must be unequivocal. Diers v. Peterson, 290 Mo. 249, 234 S.W. 792. (3) The uncontradicted evidence showed that plaintiff and her grantors had been in the open, notorious, continuous and exclusive possession of the land east of the fence, using and farming it up to the old fence or as close as practicable, and that defendants' grantors had done the same on the west side, for fifty years. The burden devolved upon defendants, who tore down the old fence and erected the new one, to show that: (a) The old fence was not the true line. Nichols v. Tallman, 189 S.W. 1184, and (b) That the former use and possession were intended to be subject to some future ascertainment of some other line than the fence as the true one. Bell v. Barrett, 76 S.W. (2d) 394; Bryan v. Miller, 299 Mo. 180, 252 S.W. 366; Lemmons v. McKinney, 162 Mo. 525, 63 S.W. 92; Martin v. Hays, 228 S.W. 744; Diers v. Peterson, 290 Mo. 249, 234 S.W. 792; Sands v. Clark, 250 S.W. 58; Chostner v. Schrock, 252 S.W. 381; Vogt v. Bergmann, 189 S.W. 1166. (4) The only reference, in the evidence, to any survey, is the testimony of defendant Hutcherson that he told Mr. Parks to survey it and that later there were some pegs in the ground. A survey cannot be so proved. Even a surveyor, himself, cannot prove his own survey except by presenting his field notes. Any other evidence of a survey is of no probative force. Cordell v. Sanders, 331 Mo. 84, 52 S.W. (2d) 834; Pioneer Cooperage Co. v. Bland, 228 Mo. App. 994, 75 S.W. (2d) 431; Diers v. Peterson, 290 Mo. 249, 234 S.W. 792. (5) It was incumbent upon plaintiff, in this sort of action, to prove the defendants were claiming an interest adverse to plaintiff. Her proof that Hutcherson relied upon information gained from Mr. Parks was proof of such adverse claim, but not an admission that the information from Parks was correct. In a suit to quiet title, proof by plaintiff that defendant relies upon certain adverse claim does not admit the validity of such claim. Graton v. Holliday, 189 Mo. 322, 87 S.W. 37.
ELLISON, J.
This was an action to determine the title to a strip of land about 20 feet wide, as a part of the SE¼ of the NE¼ of Sec. 1, Twp. 41, Rg. 26, in Henry County. It was a boundary line dispute, tried in Pettis County on change of venue. The plaintiff-respondent claimed title under the ten-year Statute of Limitations, Sec. 1002, R.S. 1939, Sec. 850, Mo. Stat. Ann., p. 1121. She did not concede that appellants had the better record title before the statute ran — for she claimed (but did not prove) the strip was a part of the land covered by her muniments of title. But she asserted her adverse possession established her title to the strip whether or not it was a part of the forty-acre tract admittedly owned by her. The defendant-appellant stood on a demurrer to respondent's evidence. The finding and judgment were for respondent. There are only two assignments of error: (1) that respondent failed to make a prima facie case; (2) that the description of the land in the evidence and judgment is so vague that the judgment cannot be enforced and no valid judgment can be entered.
We have just stated the respondent's claim was based on the ten-year Statute of Limitations. This is obvious although respondent's petition alleged she owned, and that she and her predecessors in title had been in open, notorious, exclusive and adverse possession of, said SE¼ including said twenty-foot strip up to a certain boundary line fence, for more than thirty years next
prior to the institution of her suit. Her claim cannot be based on the thirty-one-year Statute of Limitations, Sec. 1008, R.S. 1939, Sec. 856, Mo. Stat. Ann., p. 1131, because there is neither pleading nor proof as to when the equitable title emanated from the Government, or about the payment of taxes. The petition further alleged that said fence — between said SE¼ and SW¼ of said quarter section — had been for more than thirty years recognized and used as the boundary line between the two forty-acre tracts.
Neither the respondent nor any of the former owners of either of the two tracts testified at the trial. But it was stipulated that respondent had record title to the SE¼ and appellant to the SW¼. And respondent proved by two old residents of the neighborhood that the successive owners of each...
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