West Missouri Land Co. v. Thompson

• Decision Date: 12 June 1900
• Citation: 57 S.W. 1042,157 Mo. 647
• Parties: WEST MISSOURI LAND CO. v. THOMPSON.
• Court: Missouri Supreme Court

57 S.W. 1042

157 Mo. 647

WEST MISSOURI LAND CO. v. THOMPSON.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

EJECTMENT — INSTRUCTIONS — ACCRETIONS — EVIDENCE.

1. Where, in ejectment, plaintiff's record title from the government called for riparian land, and according to the plats of both parties in evidence the land called for in the deeds is the land in controversy, it was proper for the court to instruct that, according to the face of the deeds, plaintiff had the title to the land in suit.

2. Where, in ejectment, defendant's evidence shows that the land in controversy was formed chiefly by dumping earth from the river bank, and was an accretion to a strip of land lying between the river and ground platted by plaintiff, or to the platted ground, if no such strip was left, an instruction that if when the plat was made by plaintiff a strip was left between the platted lands and the river, which plaintiff had not disposed of, and the land in suit was made by deposit from the river bank by dumping, it is plaintiff's land, unless defendant has acquired title by possession, is not erroneous because it fails to state that the land in question may have arisen out of the river bed, in which case it would not be an accretion to plaintiff's land, since there was no evidence to support such a theory.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Ejectment by the West Missouri Land Company against William Thompson. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action of ejectment for a strip of land lying on the south bank of the Missouri river within the corporate limits of Kansas City. The petition is in the usual form, and the answer is a general denial. The evidence showed paper title of record in the plaintiff. The defendant's effort was to show title by adverse possession. The land in controversy is a small strip embraced within a considerable tract covered by the plaintiff's deeds. This tract was owned by the West Kansas City Land Company, from whom, or rather from whose trustees, plaintiff purchased. That company, while it owned the tract, platted upon a part of it an addition to Kansas City. There was a strip between the part platted and the river, which was not included in the plat. The following diagram was in evidence, showing the part platted and that unplatted, and showing the land in suit, which is designated by red lines:¹

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence on the part of defendant tended to show that he moved on lots 9, 10, and 11 of the plat in 1877, and that at that time the river at high water washed against and under the Kansas City & Ft. Scott Railroad, shown on the plat, though at low water the river ran within its banks somewhat north of the railroad; that defendant began dumping earth and filling in at that point on those lots, and by that means, and by the river deposits, the land was made and extended out to where the river now is, as shown on the plat; and that defendant has all the while been in possession, claiming it as his own. On the part of the plaintiff the evidence tended to prove that there was a considerable strip of land north of the platted lots between the railroad and the river at the time the railroad was built, in 1874, of which the defendant had never had possession, and of which the land in suit is a part; that as to lots 9, 10, and 11 defendant's possession was only permissive, as a tenant of Dr. Fitzpatrick, and not adverse; and that he moved onto the land in suit only a short while before the suit was begun.

At the request of the plaintiff, the court gave the following instructions: "(1) The court instructs the jury that the plaintiff has shown by the deeds and title papers introduced in evidence that it was the owner of the record title from the United States government to date of the land north of the north line of lots 9, 10, and 11, block 15, West Kansas addition number 1, up to the Missouri river, including the land described in the petition. (2) The court instructs the jury that if they find from the evidence that the plaintiff, or those under whom it claims, owned a strip of land north of the north track of the Ft. Scott & Gulf, and just south of and adjoining the land in controversy in this case, which strip was occupied by William Sexton and Charles Martin or others, none of whom claimed any title in the land, and who did not occupy the same as the tenant of any other person claiming adverse to the plaintiff, or those under whom it claims, then the possession and occupancy of said Sexton, Martin, or others is the possession of the plaintiff or those under whom it claims. (3) If you find from the evidence that when the West Kansas City Land Company platted an addition to the city of Kansas of the land purchased by said company, patented to Philebar, it did not include in said plat a strip of land north of the north line of said addition, lying between the addition and the Missouri river, and that the parcel of land in dispute was made by deposits from the Missouri river, or by dirt and other material dumped by defendant alone, or by defendant and others, plaintiff is entitled to recover in this action, unless you find that defendant has been in the actual, adverse, open, and notorious and continuous possession of said parcel of land for a period of ten years next preceding the date of the institution of this action, or had been in such possession of the strip of land between lots 9, 10, and 11 (if you find that there was such a strip of land), to which the parcel of land in controversy has been added either by deposits from the Missouri river or by dumping and filling, as above mentioned; and it is not necessary that he should have occupied said strip of land in person for that length of time, but it is sufficient if it was occupied by his tenants, or other persons occupying the land as his agents. You are instructed that, although you should find that defendant was in the actual possession of lots 9, 10, and 11, that of itself did not carry the possession of the land, if any, outside of the boundaries of those lots; and, in order to acquire a title by limitation to that land, he must have been in the open, adverse, and continuous possession of said strip of land for the period of ten years before the commencement of this suit; and, if you find that he had been so in possession of said strip, then the parcel of land in controversy is his, however made. (4) The court instructs the jury that if they find from the evidence that the plaintiff built fences on or around the land described in the petition, and rented said land, or any portion thereof, to tenants who occupied the same, these acts constitute possession by the plaintiff." And of its own motion the court gave the following: "(2) If the jury find and believe from the evidence that the defendant, Thompson, has been, since the year 1877 or 1878, in the continuous, open, and notorious possession of the lots numbered 9, 10, 11, in block 15, of West Kansas addition No. 1, and the land immediately north of them, either by himself or his tenants; has had the same fenced during that time, with houses or shanties situate upon the same, claiming the whole tract, and...