White v. Keller
| Decision Date | 13 March 1893 |
| Citation | 21 S.W. 860,114 Mo. 479 |
| Parties | White, Appellant, v. Keller et al |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. Joseph Cravens, Judge.
Affirmed.
A. J Harbison and O. L. Cravens for appellant.
The trial court certainly misconceived the testimony and the law. The plaintiff certainly made a prima facie case. Dale v Faivre, 43 Mo. 556; Davis v. Thompson, 56 Mo 39; Norfleet v. Russell, 64 Mo. 176; Crockett v. Morrison, 11 Mo. 3; Schultz v. Arnot, 33 Mo. 172; Bledsoe v. Simms, 53 Mo. 305; 6 American & English Encyclopedia of Law, p. 227; Christy v. Scott, 14 How. (U.S.) 282. Before the trial court, under the evidence in this case, could render a judgment in favor of Baurdick, it must of necessity have found that the plaintiff voluntarily abandoned the fifteen front feet of the strip, the possession of which according to the testimony was taken by stealth, against the will and without the consent of plaintiff's grantor McElhany or plaintiff. The circumstances all point to the fact that plaintiff had not abandoned the front part of the strip at least, for Baurdick alleged that he took the fifteen feet for the mere purpose of acquiring more storage room, without making any claim of title; and further, plaintiff brought this suit within six years after the cause of action accrued, and presumably under the facts, as soon as he ascertained that Baurdick was claiming the fee. The abandonment is accomplished only by voluntarily surrendering dominion over the property with the definite intention at the time of not resuming or again claiming the ownership. Anderson's Dictionary of Law, pp. 2 and 1093; Duffy v. Willis, 99 Mo. 132; Baroda v. Blumenthal, 20 Mo. 162; Fine v. Public Schools, 39 Mo. 59; Judson v. Maloy, 40 Cal. 309. Upon the facts in this case plaintiff ought to have had judgment in the lower court for the possession of at least the front fifteen feet.
George Hubbert for respondents.
Even if it could truly be said that the plaintiff or any one under whom he claims ever had at any time absolute adverse possession of the premises sued for, prior to defendant's possession, yet the language of this court in a case decided in 1881 would be most apt and appropriate for application, here to-wit: "It was not shown that White or McElhany had occupied the premises for a sufficient length of time to give him a title by reason of the operation of the statute of limitations; nor that his possession was prior to that of defendant; nor that his possession, even though short of a statutory bar, was taken and held under a claim of right; nor but what he had abandoned that possession." Something more than a mere naked prior possession is necessary as a basis for an action of ejectment. Alexander v. Campbell, 74 Mo. 142, 146; Dunn v. Miller, 75 Mo. 260; Prior v. Scott, 87 Mo. 303. The cases cited by appellant do not support his contention.
This suit is ejectment to recover a part of lot 1, in block 3, of McCord's addition to Neosho. The tract in dispute is described as follows: "Commence at a point twenty-four feet east of the northwest corner of said lot 1, thence east nine feet, thence south two hundred feet, thence west nine feet, thence north two hundred feet to the beginning." Lot 1 is in the southeast corner of the block and fronts south. Defendants admitted the possession, two of them as tenants of their co-defendant, Baurdick, who claims title. The lot (1), as platted, has a frontage of forty-eight feet and a depth of two hundred feet. On the trial it seemed to have been taken as agreed that one Coller was the original owner of the whole lot, and in 1877 he conveyed to John T. McElhaney the west half thereof. Plaintiff claimed under a warranty deed dated March 17, 1884, from McElhaney, conveying to him the west half of the lot and a quitclaim to the strip in dispute.
In 1870 defendant Baurdick, claiming title from Coller, built a house on the east half of lot 1, which extended to the east over on to the street as platted in McCord's addition, about ten feet. In 1877 McElhaney took possession of and built a frame house upon the west half of lot 1. His possession included twenty-four feet, the full half of the lot as platted. This house extended back about seventy-five feet from the front of the lot. About that time defendant inclosed the east half of lot 1, which lay in the rear of his house, with a fence which took in and inclosed the north one hundred feet of the nine feet in controversy and kept it inclosed until the trial in 1890. About 1880 or 1881 McElhaney built a platform on the south end of this strip along the side, and of the depth of his house. In 1882 defendant inclosed the front fifteen feet by putting a roof over it. From the time plaintiff's grantor took possession to the building of the platform, McElhaney used the strip as a place for depositing empty goods boxes and barrels, and plaintiff, then tenant of McElhaney, kept up the same use after the platform was built, until the front was covered in, after which he used the part back of the shed and between it and defendant's fence for the same purpose. Neither party made objection to the use the other made of the lot.
Both plaintiff and McElhaney testified that they understood that defendant had a deed from Coller for the east half of the lot and that he claimed to own the disputed strip under that deed. No deed was introduced.
The suit was commenced in October, 1890, and the ouster was laid March 7, 1884. Defendants offered no evidence, and the court who sat as a jury at request of defendant, declared the law as follows: "Upon the evidence adduced by the plaintiff he cannot recover in this case." The judgment was for the defendant and plaintiff appealed.
As the case comes to us under the evidence neither party has shown a paper title to the lot in question. It appears that defendant inclosed by fence the north half of the lot more than ten years before the suit was commenced, and, from that date, had continued in the actual and uninterrupted possession. Indeed plaintiff virtually concedes that the judgment was right as to the north one hundred feet of the lot, and we will dismiss that part from our consideration.
The title and right to the possession of the south one hundred feet is only such as may be presumed from actual possession and the circumstances under which it was held. No other evidence of title on either side having been shown, the question of possession, its character and the claim made under it, becomes all important.
There is no doubt that a suit in ejectment may be maintained upon a right acquired by simple possession though short of the period required to confer a title under the statutes of limitation, and notwithstanding the rule that the plaintiff must recover on the strength of his own title. It was said by Curtis, J., in Christy v. Scott, 14 HOW 282, 14 L.Ed. 422, ...
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