Whitehead v. Atchison

• Decision Date: 23 December 1896
• Citation: 37 S.W. 928,136 Mo. 485
• Parties: Whitehead v. Atchison et al., Appellants
• Court: Missouri Supreme Court

37 S.W. 928

136 Mo. 485

Whitehead v. Atchison et al., Appellants

Supreme Court of Missouri, First Division

December 23, 1896

Appeal from Jackson Circuit Court. -- Hon. Chas. L. Dobson, Judge.

Affirmed.

M Campbell for appellants.

(1) There was not a scintilla of evidence to show that the land in dispute was in lot 1. In ejectment it is essential to plaintiff's case that he show such a right as is necessary to a recovery under our law. Duncan v Noble, 99 Mo. 188. (2) The court erred in its rulings on the instructions. Stone v. Hunt, 114 Mo. 66; Mather v. Walsh, 107 Mo. 121; Wilkerson v Eilers, 114 Mo. 245; Kincaid v. Dormay, 47 Mo. 337; Bell v. Jamison, 102 Mo. 74; Whitehead v. Ragan, 106 Mo. 231.

Moore & Vaughan and R. O. Boggess for respondent.

(1) The trial jury found for the plaintiff on the issue whether the stones were placed as monuments at the southwest and southeast corners of lot 1, and this finding is conclusive on appeal. (2) Natural monuments must prevail over artificial ones and calls for quantity must yield to calls for course and distance. Orrick v. Bower, 29 Mo. 210; Kronenberger v. Hoffner, 44 Mo. 185. (3) Landowners can not make a survey and plat for partition, plant stones as monuments for corners, out of sight, beneath the surface of the earth, mark the courses and distances bounding the subdivision, and mark these and the area thereof, without noting the existence of such stones on the survey or plat of the subdivision, and calling for them as monuments in the deeds of partition, wherein such stones have been allowed to control. It is claimed by appellant that the opinion delivered in this case, by this court, when it was here at an earlier date, reported 106 Mo. 231, goes to this extreme. On behalf of this court we controvert the assertion, and insist, first, the language employed by the court will not justly bear that interpretation; second, none of the authorities cited by the court support the proposition, and, third, if the opinion so holds it is wrong, and ought to be at once overruled. Loring v. Norton, 8 Maine, 61; Jackson v. Moore, 6 Cow. 7; Evans v. Green, 21 Mo. 170; Coburn v. Coxeter, 51 Maine; Hart v. Rector & Dobbins, 13 Mo. 497; Shutz v. Lindell, 40 Mo. 330.

Robinson, J. Brace, C. J., and Barclay, J., concur in result. Macfarlane, J., concurs by separate opinion. Macfarlane, J., concurring and dissenting.

OPINION

Robinson, J.

This case, between the same parties and upon identically the same state of facts, was before this court and is reported as Whitehead v. Ragan in the 106 Mo. 231, 17 S.W. 307. When here then, the judgment of the circuit court was reversed and the case remanded for a new trial. What became of that case is not disclosed by the record before us, but on the eighteenth of June, 1892, plaintiff filed his petition as a basis for the present suit, asking for the recovery of possession of fifty feet off of the south end of lot one of Kritzer & Ragan's subdivision, etc., claimed to be unlawfully withheld from him by defendant, and for damages, and monthly rents and profits. Upon the issues as joined, the case proceeded to its second trial before the circuit court, upon what might be said to be identically the same state of facts as was developed at the former trial when the case reached this court on its first appeal.

The statement of facts as detailed in that opinion will be adopted literally as the statement of facts in this, and is as follows:

"About the year 1870 defendant, Mary Ragan, and one Virginia Kritzer, being the owners of the whole tract, had it subdivided into seven lots numbered from 1 to 7. A plat of the subdivision was made and recorded. The dimensions of each lot and the area were marked on the plat. Lot 1 is designated on the plat as a parallelogram, eleven and thirteen hundredths chains north and south, five and thirty-four hundredths chains east and west, containing five and ninety-four hundredths acres. This lot lay in the northwest corner of the tract. Lot 4 lay south of and adjoining lot 1, but extending six and sixty-six hundredths chains further east. The north and south line on the west side of lot 4 as marked on the plat was eight and seventeen hundredths chains, and the lot contained twelve and ninety-two hundredths acres.

"On the first day of September, 1870, defendant conveyed, by quitclaim deed, to Virginia Kritzer, all her interest in lots 1, 5, and 6, reciting in the deed that lot 1 contained five and ninety-four hundredths acres 'as will appear by reference to the recorded plat of said subdivision.' March 17, 1885, Virginia Kritzer and husband conveyed to Larkin and Blackmar, by warranty deed, lot 1 under the following description: 'Lot number 1 in Kritzer and Ragan's subdivision of the east half of the northwest quarter of section 21, township 49, range 33, containing five and ninety-four hundredths acres more or less, including thirty feet roadway.'

"April 22, 1886, Larkin and Blackmar conveyed, by warranty deed, to plaintiff Whitehead, 'lot 1 in Kritzer and Ragan's subdivision in east half of the northwest quarter, section 21, township 49, range 35, in Jackson county, Missouri.' When he purchased he was not shown the corners of the lot, but was referred to the plat for quantity, courses and distances.

"At the time of plaintiff's purchase, lots 1 and 4 were included in one inclosure. Soon thereafter defendant built an east and west fence, as she claimed, on the north line of lot 4 for the purpose of a separate inclosure of that lot. Plaintiff claims that this fence is about thirty-five feet too far north and included that quantity of lot 1, to recover which this suit is prosecuted.

"An accurate measurement of the north and south line of plaintiff's lot 1, commencing at defendant's fence, shows an unquestioned shortage of thirty-four and fifty-eight hundredths feet as compared with the whole length of the lot as shown on the plat. All the foregoing facts were shown by plaintiff, and are not disputed.

"Defendant offered evidence which tended to prove that, when the subdivision was made, stones were planted to mark the four corners of lot 1; that after she conveyed her interest in lot 1 to Kritzer in 1870, the line between the stones planted for the southwest and southeast corners of lot 1 was adopted by them as the true division line between lots 1 and 4, and was so recognized and used until plaintiff purchased lot 1; that the north and south lines of the subdivision on the west side were fifty-one feet shorter than was shown by the plat; and that the division fence was so marked, held and recognized."

It might be well, at this point, to further add that no witness for defendant in attempting to show that stones were planted to mark the corners of lot 1, stated that they were visible upon the surface of the ground, so as to indicate to one not familiar with the survey, their location, but all spoke of them as buried or hidden stones. No stones or monuments locating the southeast and southwest corners of lot 1 were visible to plaintiff when he purchased his lot, nor were the places where they were buried or planted pointed out or named to him.

At the close of the testimony, the trial court, in the case reported in the 106 Mo., directed a verdict for plaintiff and defendant prosecuted her appeal, alleging that action of the court as error. This court then sustained the contention of defendant, and reversed and remanded the cause for a new hearing, upon the theory, as expressed in the opinion as then announced, that the boundary line as actually located was a question for the determination of the jury, in the conflict between the contending lot owners, and that if the line as fixed by the stone between lots 1 and 4 was located upon the lands when surveyed and subdivided for partition, and could be ascertained and determined, that should constitute the true division line between the lots, though it conflicts with the description given in the plats and the calls in the deeds in accordance therewith, made by the cotenant partitioners, and in all after conveyances affecting said lots.

At the close of the testimony in the present case the trial court, following in part the theory of the opinion in the 106 Mo., gave the following instructions for plaintiff, upon which the jury found a verdict in his behalf, for the giving of which, and the refusal of all instructions as asked by defendant, and for various reasons set out in the bill of exceptions filed herein, defendant again prosecutes this appeal.

"1. The burden of proof rests on the plaintiff and he must make out his case by the greater weight of the credible testimony in the case.

"2. If the jury believe from the evidence that at the time Kritzer and Ragan's subdivision was surveyed and platted the line between lots 1 and 4 thereof was marked and established by corner stones set under the directions of the surveyor, making said plat at the southwest and southeast corners of lot 1, and that the land in dispute lies north of the line fixed by said stones, then the finding must be for plaintiff; but if the land in dispute lies south of the line fixed by said stones, then the finding must be for defendants.

"3. If you believe from the evidence that at the time Kritzer and Ragan's subdivision was surveyed and platted no stones were set under the direction of the surveyor making said plat at the southwest and southeast corners of lot 1, thus marking and establishing the line between lots 1 and 4, then you will find for plaintiff.

"If you find for plaintiff as to the land in dispute you will assess his damages at such sum as you believe from the evidence he sustained from the commencement of this action to this date by reason of defendant's withholding from him...