Von Eime v. Fuchs

• Decision Date: 10 July 1928
• Docket Number: No. 26770.,26770.
• Citation: 8 S.W.2d 824
• Parties: AUGUST VON EIME and ELIZABETH VON EIME v. ALBERT FUCHS and MAGDALENA FUCHS, Appellants.
• Court: Missouri Supreme Court

8 S.W.2d 824

AUGUST VON EIME and ELIZABETH VON EIME v. ALBERT FUCHS and MAGDALENA FUCHS, Appellants.

No. 26770.

Supreme Court of Missouri, Division One.

July 10, 1928.

Appeal from Circuit Court of St. Louis County. — Hon. G.A. Wurdeman, Judge.

AFFIRMED.

Joseph C. McAtee for appellants.

(1) The application for a change of venue should have been granted. Douglass v. White, 134 Mo. 228; Horning v. Jones, 269 S.W. 399. (2) Rapp's testimony as to what the Government survey contained was a conclusion. The survey was the best evidence, and the admission of his plat in evidence was contrary to the statute. Sec. 12719, R.S. 1919; Hopper v. Hickmann, 145 Mo. 411; Houx v. Batten, 68 Mo. 84. (3) The peremptory instructions asked by defendant should have been given. Kuhlman v. Sott, 166 Mo. 214; State ex rel. Baumunk v. Goetz, 131 Mo. 675; Charles v. Patch, 87 Mo. 450. (4) To permit plaintiff to state the location of his line is tantamount to subjecting the whole case to the opinion of one particular witness. Maddon v. Ry. Co., 50 Mo. App. 66; Bradley v. City of Spickardsville, 90 Mo. App. 416; Nash v. Dowling, 93 Mo. App. 156; Southern Iron Co. v. Smith, 257 Mo. 226; 22 Cyc. 634, sec. 731. (6) No common source of title was shown, and to constitute adverse possession all the elements thereof must appear and be submitted to the jury. Stewart v. Lead Belt Co., 200 Mo. 281; Mann v. Doerr, 222 Mo. 2; Akin v. Adams, 256 Mo. 13; St. Louis v. Furnace Co., 235 Mo. 29. (7) The first and third instructions conflicted with the second, and are therefore erroneous. Frank v. Ry. Co., 57 Mo. App. 181. (8) Plaintiff should not have been permitted to testify to his own possession. Kendall v. Shoe Co., 46 Mo. App. 581; Cartwright v. Culvert, 74 Mo. 179.

George F. Heege for respondents.

(1) A judgment should be so rendered and the lines so drawn as to give the plaintiffs accretions as would guarantee them their proportionate and original river front prior to the formation of the accretions. A judgment for appellants would extend their property longitudinally down the river between respondents' land and the river. This does not appeal to the equities of the situation. Frederitzia v. Boeker, 193 Mo. 228; Miller v. Bufton, 275 Mo. 40, 294 Mo. 526. (2) The defendants themselves brought out the location of the section lines. Also there was no issue as to the section lines; the sole issue was as to accretions. Therefore, the statement of plaintiff as to the location of his line was harmless. (3) Appellants themselves testified as to plaintiffs' possession and to their own possession, and therefore appellants cannot complain. (4) The statement of the surveyor as to the Government survey was cumulative only, as he testified from the plat which he made himself from observations and personal contact. Further, there was no issue as to the Government survey. They were admitted by both sides.

GENTRY. J.

The plaintiffs, husband and wife, instituted this action in the Circuit Court of St. Louis County, the amended petition containing three counts. As the jury found for the defendants on the first and second counts, and as plaintiffs have not appealed, said counts need not further be considered. The third count alleged that the plaintiffs were the owners of certain real estate, a "tract of land, being part of the accreted land to U.S. Survey 3114. Township 44 North, Range 5 East:" that they and their ancestors had been in possession and owned said property for more than ten years, for more than twenty years and for more than thirty years, and that their possession had been continuous, uninterrupted, notorious and adverse to the defendants and their ancestors. The third count then stated that the defendants claim to have some title, interest or estate in said real estate adverse to that of plaintiffs, by reason of which plaintiffs prayed the court to determine and to find the title of plaintiffs and defendants in said property. Defendant Magdalena Fuchs filed an answer consisting of a general denial; and the defendant Albert Fuchs filed an answer consisting of first a general denial and then an allegation that he had been in possession of said land for more than ten, twenty-four and thirty years through himself and his ancestors in title, and that said possession had been continuous, uninterrupted, notorious and adverse to plaintiffs and their ancestors, and that plaintiffs had never been in possession thereof. No reply was filed by plaintiffs. A trial before a jury resulted in a verdict for plaintiffs on said third count, that plaintiffs had title to the land in controversy, and that defendants had no title therein. Within the statutory time motions for a new trial and in arrest of judgment were filed. After said motions had been overruled, the death of defendant Magdalena Fuchs was suggested; and defendant Albert Fuchs was granted an appeal.

The real estate in controversy is situated on the bank of the Meramec River, the same being an accretion located in a bend of said stream, the river being a navigable stream. The question in issue is, does said accretion belong to the plaintiffs or to the defendants, they being adjoining proprietors?

Plaintiffs' evidence tended to show that the father of plaintiff, Wilhelm Von Eime, acquired title to lot six in the subdivision of of the U.S. Surveys 3113 and 3114 in 1874, said real estate being situated on the bank of said river; and that his father owned and occupied said real estate until his death, some twelve years prior to the trial. Plaintiffs claim title to said lot six by deed from the widow and other children of Wilhelm Von Eime, deceased. Plaintiffs' evidence further tended to show that this accretion was formed from time to time and that plaintiffs and their ancestor had been in possession of the same from the time it was formed, for thirty-five years, cultivating the accreted land and using it for various purposes. Plaintiffs' evidence also tended to show that shortly prior to the institution of this suit the defendant Albert Fuchs laid claim to the accreted land, and that two of his sons who worked for him on this farm constructed a ditch across a part of the land in controversy, thereby interfering with its use by plaintiffs.

The defendant's evidence tended to show that the defendant is the owner of thirty-two acres, the same being lot twelve of U.S. Survey 1933, which title he acquired from his father by inheritance. The father, Andrew Fuchs, acquired the title in 1871; and the father and defendant have been in possession of said lot to the present time. The defendant's evidence tended to show that the defendant and his father had been in possession of the land in controversy, which was an accretion, and which they claimed almost from the time the accreted land was formed. Defendant's evidence also tended to show that he had been cultivating the land in controversy for many years past. In rebuttal, the plaintiffs' evidence tended to contradict the evidence of the possession and cultivation of said land by the defendants.

I. The failure of the plaintiffs to file a reply to the separate answer of the defendant Albert Fuchs cannot be considered at this late time, as no objections were made thereto in the trial court, and the case was tried as if a reply Reply. had been filed. This constitutes a waiver. [Roden v. Helm, 192 Mo. l.c. 83.]

II. It is stated in appellant's brief that defendant Magdalena Fuchs died pending the trial and that her death was suggested, but that no administrator was appointed for her and the case proceeded as if she were living and judgment was Death of rendered against her. In this, counsel is in error, Defendant: for both defendants filed answers, and the motion for Reply. a new trial recites that it was filed by the defendants, and it is signed by their attorney; and the same is true of the motion in arrest of judgment, both of which were filed on October 31, 1924. The motions were continued until the January term, 1925, when they were overruled. On March 19, 1925, the death of Magdalena Fuchs was suggested for the first time; so we must assume that her death occurred after the motions for a new trial and in arrest had been overruled, and not during the trial. It would be unfair to convict the trial court of the error of proceeding with the trial of a case wherein one of the defendants had died, and of rendering judgment against a deceased person, unless the record showed such to be the fact. As the opposite appears from the record, we must assume that the action of the trial court in this respect was proper; besides, this appeal was asked and is prosecuted alone by defendant Albert Fuchs.

III. It is insisted that the amended petition, which is in three counts, states one or more causes of action different from those contained in the original petition, which it is said had only two counts. If that is true, counsel for defendants should have filed a motion to strike out the amended Departure. petition, or such count thereof which was a departure from the original cause or causes of action. [Walker v. Railroad, 193 Mo. l.c. 172; Scovill v. Glasner, 79 Mo. l.c. 454-5; Grymes v. Lumber Co., 111 Mo. App. l.c. 362.] But as no such motion was filed, and as defendants each filed an answer to the amended petition, such departure, if departure there was, has been waived. [Authorities supra.]

When a pleading has been abandoned, as was the original petition in the instant case, this court cannot look to nor consider such pleading for any purpose, unless it is offered in evidence and preserved for review in the bill of exceptions. [Forrister v. Sullivan, 231 Mo. l.c. 352.] Besides such alleged departure was not called to the attention of the trial court in the motion for a new trial; complaint thereof cannot here be made for the first time. [Chance v. Jennings, 159 Mo. l.c. 553.]

IV. The September term of the St. Louis County Circuit Court began on the third Monday in ...