Weller v. Wagner

• Decision Date: 23 March 1904
• Citation: 79 S.W. 941,181 Mo. 151
• Parties: WELLER v. WAGNER.
• Court: Missouri Supreme Court

79 S.W. 941

181 Mo. 151

WELLER v. WAGNER.

Supreme Court of Missouri, Division No. 2.

March 23, 1904.

EJECTMENT — EVIDENCE — PROOF OF NEGATIVES — HARMLESS EXCLUSION — INSTRUCTIONS — CHARACTER OF POSSESSION — REFUSAL OF REQUESTS — TRIAL — PROVINCE OF JURY — CONFLICTING EVIDENCE — EVIDENCE NOT OBJECTED TO — APPEAL — PRESUMPTIONS.

1. Where evidence is conflicting, it is the province of the jury to pass upon its weight, and with their determination an appellate court will not interfere.

2. Evidence admitted without objection cannot be first objected to on motion for new trial.

3. Where the record does not disclose what a question was, as it is therefore impossible for the Supreme Court to determine whether the answer was responsive or not, the ruling of the trial court in striking out the answer as not responsive will be presumed to be correct.

4. In ejectment, testimony that witness had never heard that a fence line was disputed or called in question, or that any claim was made to the land on defendant's side of the fence by anybody but defendant, was properly excluded as an attempt to prove negatively the fact that no objection was made.

5. Error, if any, in excluding evidence, in ejectment, that witness had never heard that defendant's fence line was disputed or called in question, or that any claim was made to land on defendant's side of the fence, except by defendant, was not prejudicial.

6. In ejectment, a charge to find for plaintiff unless defendant had been in "uninterrupted, continuous, adverse, and hostile possession," etc., was not erroneous in using the word "hostile" in addition to "adverse," as the two words mean the same in law.

7. It was not error to refuse defendant's request where the matter embraced therein was already covered by charges given for defendant.

Appeal from Circuit Court, Holt County; Gallatin Craig, Judge.

Action by Ernest F. Weller against George Wagner. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos. C. Dungan and H. S. Kelly, for appellant. C. A. Anthony, John Kennish, and R. B. Bridgeman, for respondent.

BURGESS, J.

This is an action of ejectment to recover possession of a narrow strip of land, 6 inches wide at one end, and 20 feet wide at the other end, and 160 rods long. The case was tried by the court and jury, the trial resulting in a verdict and judgment for plaintiff for the possession of the land. Defendant appeals and assigns error.

The facts are about as follows: Plaintiff, Weller, and defendant, Wagner, are adjoining landowners. Weller owns the south half, and Wagner the north half, of the northeast quarter of section 4, township 62, range 37, in Holt county, Mo. Wagner also owns the land adjoining Weller on the east, so that the boundary line between their lands extends a quarter of a mile north and south on Weller's east line, and a half a mile east and west on Weller's north line. The line in controversy in this suit is that running east and west. In the year 1898 the county surveyor, Landon, made a survey, and established the entire boundary line between these landowners, not only on the north of Weller's land, but also on the east. This survey, Weller testified, was made pursuant to an agreement of long standing between him and Wagner for the purpose of ascertaining the true boundary line between them, in order that good and permanent fences might be built thereon. Wagner furnished a hand to assist in said survey. On Weller's east, the line so established by Landon was in on Weller's inclosure, five or six rods west of the old boundary line fence; and a new fence was thereupon built on such line, as located by Landon, Weller building one half, and Wagner the other. The corner established by Landon on the north corner of the north and south line and on the east corner of the east and west line was about 6 inches on Wagner's inclosure, north of the east and west boundary line fence then standing. The west corner of the east and west line, as established by Landon, was about 20 feet on Wagner, and north of the said east and west boundary fence. Wagner refused to recognize that part of Landon's survey locating this east and west boundary line, and it is for the strip of land lying between this line of the Landon survey and the east and west boundary fence that this suit in ejectment was brought to recover. The answer is a general denial and a plea of title by the statute of limitations. Wagner bought the west 40 along the line in controversy in 1866, and built the fence on said line along said 40 in 1868. He bought the east 40 about 1874, and fenced it a year or two after. Weller owned the south half of the north half of section 4, being four 40 in a line extending across the entire section. Of the east 80, along the line in dispute, Weller bought the west 40 from Swope in 1888, and the east 40 from Stultz in 1896. The fence forming the east and west boundary line between Weller and Wagner stood in the same place when Weller purchased the land as at the commencement of this suit. Defendant's evidence tended to prove that this boundary fence had never been changed since it was first built. He testified that at one time he set the fence back on his land 1 foot, and there was evidence tending to prove that for some years preceding, and up to the year 1880, a public road ran east and west on the north side of said boundary fence. Wagner, in his testimony, says there might have been a road there, but that "I forgot about setting the fence over there. I rather think it was done." He also stated in his testimony, as did several other witnesses, that the surface of the ground indicated that there had been a fence about 12 feet north of where the present fence stands. Weller testified, and was corroborated in his testimony, that in 1888, shortly after he purchased the Swope 40, he had a conversation with Wagner, in which Wagner said he did not know whether this fence was on the line or not, and that it was agreed and understood between them at that time that as soon as they could get the line surveyed they would put in a good fence, and that they had had several conversations to that effect thereafter. There had been at different times four surveys by county surveyors, each of which had some bearing upon the line in dispute. In 1868 Davis, county surveyor, attempted to locate this line for Wagner. His report shows that he commenced at the quarter section corner on the north of section 4, and, running south, placed a stone at the southwest corner and another at the southeast corner of Wagner's west 40. Wagner testified that he...