Walbrunn v. Ballen

• Decision Date: 31 October 1878
• Parties: WALBRUNN et al., Appellants, v. BALLEN.
• Court: Missouri Supreme Court

68 Mo. 164

WALBRUNN et al., Appellants,

v.BALLEN.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

H. M. Pollard for appellants.

HENRY, J.

This was an action of ejectment com menced by Walbrunn et al., on the 2d day of September 1875, against William Ballen for the northwest quarter of the northwest quarter of section 24, township 56, range 23 in Livingston county. Defendant denied that he had, or ever had, possession of any part of said tract of land except 15 44-100 acres lying in the northwestern corner of said tract; and disclaiming any title to the balance, pleads the statute of limitations as to said 15 44-100 acres. Plaintiffs' evidence tended to show title in themselves to the whole tract. Defendant's evidence tended to show that he had been in possession of the fifteen acre tract since the spring of 1864, and that he had fenced and cultivated the same, and that such possession was open, notorious, adverse and hostile. Defendant testified that, in January, 1864, he bought and received a deed to a forty acre tract, which he supposed at the time was the tract in dispute, but which was in fact a different forty; that so believing, he took possession of the forty in dispute, made the improvements above specified, and did not discover his mistake until July, 1873, when he went to one Sanders to get an abstract of the title for the purpose of executing a mortgage, when he ascertained that he had no title to the forty in controversy, but that plaintiff owned it, and he thereupon mortgaged the forty which he did own. No change of possession occurred after this discovery, but defendant continued in possession as before.

1. MISTAKEN POSSESSION, WHEN ADVERSE.

Plaintiffs asked the court to declare that, having taken possession under the circumstances testified to by defendant, his possession was not adverse and hostile, which the court refused. They rely in support of the doctrine of that refused instruction upon the following cases: Knowlton v. Smith, 36 Mo. 507; Kincaid v. Dormey, 47 Mo. 337; St. Louis University v. McCune, 28 Mo. 483; Thomas et al., v. Babb et al., 45 Mo. 384. Bliss, J., in the last case cited, states very clearly the doctrine of those cases. “It is not uncommon for adjoining proprietors, in making their division fences, to mistake the true line of division. Sometimes they intend to make the line of the fence the actual boundary of their separate property, claiming and occupying up to it as the individual property of each, and each understanding the character of the claim and occupancy of the other; but, sometimes also, they make the fence as a division of convenience, mistaking or ignoring the true line; or, one of them may make it as part of a necessary inclosure, without intending to claim beyond the true line. In the one case the occupancy would be adverse, in the other it would not.”

In Kincaid v. Dormey, the same learned judge said: “I find, first, that the court gave the correct doctrine upon the question of adverse possession in holding, by mistake up to a division fence and over the true line, without claiming to own anything more than what is embraced in the true line. The law upon that subject has been so repeatedly declared by this court as to require no further comment;” citing the cases above referred to. In St. Louis University v. McCune, 28 Mo. 485, Richardson, J., delivering the opinion of the court, said: “If the plaintiffs erected their fence accidently upon the defendant's land, through mistake or ignorance of the correct line separating the tracts, and without intending to claim beyond their true line, then the line of occupation thus taken, and the possession that followed it, did not work a disseisin.” The doctrine deducible from these utterances of this court is, that if one by mistake inclose the land of another, and claim it as his own, his actual possession will work a disseisin; but if, ignorant of the boundary line, he makes a mistake in laying his fence, making no claim, however, to the land up to the fence, but only to the true line as it may be subsequently ascertained, and it turns out that he has inclosed the land of the adjoining proprietor, his possession of that land is not adverse. Tamm v. Kellogg, 49 Mo. 122; Hamilton v. West, 63 Mo. 93.

If this be the correct doctrine, that of the refused instruction is not. Here the...