Vogt v. Bergmann

• Decision Date: 01 December 1916
• Docket Number: No. 17608.,17608.
• Citation: 189 S.W. 1166
• Parties: VOGT et al. v. BERGMANN.
• Court: Missouri Supreme Court

189 S.W. 1166

VOGT et al. v. BERGMANN.

No. 17608.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Appeal from Circuit Court, Warren County; James D. Barnett, Judge.

Ejectment by John Vogt and others against William Bergmann. Judgment for plaintiffs, and defendant appeals. Reversed.

Emil Roehrig, of Warrenton, for appellant. T. W. Hukriede and J. W. Delventhal, both of Warrenton, and Rosenberger & Dowell, of Montgomery, for respondents.

BLAIR, J.

This is an appeal from a judgment for plaintiffs in an action in ejectment begun in the Warren circuit court to recover a strip of land along the south side of the E. ½ of S. E. ¼ of section 10, township 47, range 2 west, in Warren county. The area of the strip in controversy is less than an acre. It is conceded plaintiffs have the paper title, and that defendant had been in the open, notorious, and exclusive possession of the parcel for about 20 years before this action was begun. Plaintiffs endeavored to show defendant did not claim adversely, but, though occupying the parcel, claimed only to the true line, wherever that might be.

It was shown that defendant on a former trial testified he bought 120 acres and "wanted no more than what" was his; that he always claimed the true line to be at or beyond his fence and claimed the land inside that boundary, though he said he never intended to claim any land that did not belong to him. Wehmeyer, a surveyor, testified defendant told him he claimed to a corner north of his fence. Judge Huckriede testified defendant told him his fence was on the section line; said he only claimed what was his but that his fence was on the line.

At the close of the evidence defendant offered an instruction in the nature of a demurrer to the evidence which the court refused to give. Numerous errors are assigned.

In Milligan v. Fritts, 226 Mo. loc. cit. 197, 125 S. W. 1101, this court announced the rule decisive of this case. In that case, after reviewing the authorities, the court said:

"The fact that the defendant or those under whom he claims may have entered upon the land and located the fence and barn by mistake and in ignorance of the location of the true boundary line, the fact that they had no intention of taking what did not belong to them, the fact that within their fences they may have inclosed a larger area than what they might have found out their deed called for if they had consulted the plat and had surveyed the lots, would not destroy the adverse...