Wright v. Hines

• Decision Date: 11 October 1926
• Docket Number: 25811
• Citation: 287 S.W. 471
• Parties: WRIGHT v. HINES et al
• Court: Missouri Supreme Court

287 S.W. 471

WRIGHT v. HINES et al

No. 25811

Supreme Court of Missouri, First Division

October 11, 1926

Randolph & Randolph, of St. Joseph, for appellants.

Jno. E Heffley, of St. Joseph, for respondent.

OPINION

RAGLAND, P. J.

Ejectment. Plaintiff is the owner of the record title to 60 acres of land, the south half of the northwest quarter of the northwest quarter of section 18, and the southwest quarter of the northwest quarter of said section, all in township 57 range 33, in Buchanan county, Mo. The defendants have the title to the land adjoining that just described, on the east. In April, 1922, defendants had a survey made for the purpose of determining the boundary line between their land and that of plaintiff. The line marked out by the surveyor as and for the boundary lies west of, and in a general way parallels, an old fence that had theretofore served to separate the dominion of plaintiff from that of the defendants. The strip of land between the surveyed line and the fence is 30 feet wide at the north end and 108 feet at the south end. Defendants took possession of it as soon as the survey was completed, and this suit followed.

The petition is conventional; the answer is a general denial. In support of his claim of title plaintiff relies upon adverse possession, and what he asserts was an agreement establishing the dividing line.

The third fork of Platte river flows westwardly through the north end of defendants' land, crosses the boundary onto plaintiff's, and then makes almost a semicircle approaching the boundary again near the northeast corner of plaintiff's south 40; from thence it flows in a southwesterly direction. It has rather a deep channel of from 25 to 40 feet in width, drains considerable territory, and frequently overflows. The lands of plaintiff and defendants near the boundary between them are low, covered with timber and brush, and subject to overflow.

At an early day some one built a fence on or near the boundary line between plaintiff and defendants. The evidence tends to show that the south end of the fence was 108 feet east of the dividing line called for by the survey to which reference has been made; it proceeded thence northwardly until it reached a point near the lower end of the semicircle described by the river where it crossed that stream; it then followed the meander of the river to a point on or near the quarter section line; it then extended north to the line which constitutes the northern boundary of the lands now owned by the plaintiff and defendants. In 1895 plaintiff's grantor, his father, John Wright, and defendants' ancestor, Lewis Chambers, relocated the fence in part. Beginning at a point in the line of the fence about 500 feet from its south end, they had one Clark stake out a new line to their north boundary, and then built on that line a fence of post and wire. Wright built the north part and Chambers the south part; where a tree in the line of the fence was suitably located the wire was stapled to that. From the time this fence was built until after Lewis Chambers' death, in 1919, no question was ever raised between the adjoining proprietors as to its location or that of the dividing line between their respective holdings. The Wrights, the father and then the son, used and occupied the land on the west up to the fence, and Lewis Chambers that on the east to the fence. The Wrights had an unfenced field on the west side of the river where corn was grown, and after the corn was removed each year the land was pastured until the next season. Chambers used his land exclusively for pasture. Plaintiff at intervals during Lewis Chambers' lifetime cut and sold timber growing on the north end of his (plaintiff's) land right up next to the fence.

Owing to its proximity to the river, great difficulty was experienced in maintaining the fence. The wires were broken and torn loose from the posts by drift borne on the floods of the river so often and to such an extent that the fence had to be repaired or renewed in part at the beginning of the pasture season each year. In restretching or restapling the wires they were in numerous instances fastened to trees outside of the line of the fence. When the survey was made in 1922, the wires of the fence in some places were much less than 30 feet from the line which according to the survey is the boundary; in other places the distance exceeded 30 feet. Aside from these occasional departures, the fence at the time of the survey was on the line staked out by Clark in 1895.

For proof of his contention that John Wright and Lewis Chambers established by agreement the dividing line between their lands, plaintiff relies principally upon the testimony of his brother, Isaac Wright. Touching that matter the latter testified:

Direct examination:

'Father and Chambers got together; they agreed to start from the fence on the southeast side and run it on north, and agreed to leave John Simon Clark stake it through there over the fence where it crossed the creek to the north side.

'Q. Were you present when that agreement was made? A. Yes, sir.

'Q. After this agreement was made, was that where the old fence was located -- they started from the old fence and ran through? A. Yes, sir.

'Q. Who owned the land on the west side of the fence at that time' A. My father.

'Q. Who owned the land on the east side? A. Chambers. * * *

'Q. When was that agreement entered into? A. About 29 years ago.

'Q. Who staked the land through there, if any one? A. John Simon Clark.

'Q. Was there an agreement that John Simon Clark should stake the land? A. They agreed that John Simon Clark should stake it off. * * *

'Q. Who put in the north side' A. My brother John and I helped. * * *

'Q. Who put in the fence on the south side? A. Mr. Chambers and, I think, one of his boys.

'Q. Has that old fence remained the line since that time? A. Yes, sir.'

Cross-examination:

'Q. Your father and Lewis Chambers agreed, you say, that this man Clark should set the stakes where they would build the fence? A. They set the stakes on the east side where they put the fence. * * *

'Q. Did this man Clark, that day when he set the stakes through there, did he have any surveyor's instruments with him? A. No. * * *

'Q. Did they go anywhere to find a rock or any corner stone that any surveyor had set? A. No, sir. * * *

'Q. Tell just as near as you can in your own words what was said between your father and Mr. Chambers -- who first made the proposition? A. The cattle was going across from one place to the other on the west side of the creek, and then they got talking about changing the fence and putting it straight through on the east side of the creek.

'Q. And then they just agreed that Clark would point the fence line out? A. They agreed to let John Clark stake it off and they would put the fence there.

'Q. That was because the cattle was getting back and forth? A. If they kept the cattle in one side, they would have to make a new fence on the west side of the creek and then change it on the east.

'A. They would use the old hedge? A. The old hedge had a post and wire in with it.

'Q. They would use that as far as it went? A. As far as it went; it made a fence.

'Q. And from there on they built a new fence? A. Yes.'

Redirect examination:

'Q. Mr. Wright, was there any conversation at that time between your father and Mr. Chambers at the time John Simon staked the land about getting a surveyor? Did your father and Mr. Chambers agree about that? A. Father asked him if he wanted it surveyed, and he said they could stake it through near enough.

'Q. There was some talk about getting a surveyor? A. Father asked him if he wanted it surveyed.

'Q. What did Mr. Chambers say? A. He said they could stake it through without a surveyor.

'Q. Who suggested John Simon Clark? A. They both agreed about that.'

The trial court's finding of fact with reference to the alleged boundary line agreement was as follows:

'The court finds that about the year 1895 a new fence was located and built on a line approximately 30 feet east of said surveyed line. The circumstances as to the location of said fence in 1895 rests upon the testimony of witness, Ike Wright, and such circumstances as shown by the evidence corroborating or discrediting the same. It appears that the second fence above referred to was located and built by some one many years ago; that said fence was in fact approximately the true line -- that is, within 30 feet of the surveyor's line dividing the said northwest quarter of section 18. When it is considered that said quarter section was short and that no one knew that there was such shortage and no one, therefore, knew the exact and true line, it would appear, in the absence of any testimony as to any circumstances surrounding the location of the second fence, that some one had made a very fair and intelligent guess at the true dividing line. In other words, the location of this second fence, in itself, tends to show deliberate consideration and purpose in...