C. M. COURTNER v. H. W. PUTNAM and ANNA PUTNAM, Appellants.
Division One, Supreme Court of Missouri
July 9, 1930
325 Mo. 924 | 30 S. W. (2d) 126
The Public Service Commission Act vests in the Commission exсlusive jurisdiction to determine and fix reasonable rates (
‘‘No court of this State, except the circuit courts to the extent herein specified and the supreme court on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the executing or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties.” (Italics ours.)
This statute expressly prohibits the circuit court from enjoining, restraining or interfering with the Commission in the performance of its official duties except to the extent specified in the statute. Turning to the statute we find that the only authority given the circuit court is to review the action of the Commission by “writ of review” after the Commission has denied a rehearing, with right of appeal to the Supreme Court.
Whether or not the Kansas City Public Service Company is entitled to an increase in rates is not before us for decision and we do not decide that question. What we do hold is that the Public Servicе Commission has exclusive jurisdiction to determine that question, subject to review by the courts, and the circuit court has no authority to enjoin the exercise of that jurisdiction.
We regard the city‘s suit as one for injunctive relief only. It is our conclusion that the preliminary rule should be made absolute. It is so ordered.
All concur. Blair, J., in the result.
SEDDON, C.—Action in ejectment, commenced at the May, 1926, term of the Greene County Circuit Court. The petition is in the conventional form, the plaintiff (respondent here) alleging that, on the sixth day of May, 1926, he was entitled to the possession of all
The answer denies generally the allegations of the petition, and avers that dеfendants are the owners of the described premises and that plaintiff has no interest therein.
A trial of the issues to the court below, sitting as a jury (trial by jury being waived by the parties), resulted in a general finding by the court that plaintiff is entitled to the possession of the described premises, being all of Lot 16 of W. B. Searcy‘s Addition to the city of Republic, Missouri; that plaintiff is damaged in the sum of $25 because of the withholding of possession of said premises by the defendants; and that the value of the monthly rents for the use of said premises is two dollars; wherefore, it was adjudged by the trial court that plaintiff have and recover оf and from the defendants the possession of the described premises, together with the sum of two dollars per month, as rents, from the date of said judgment until possession of the premises be restored to plaintiff, and that plaintiff recover $25 damages and the costs of suit, and that process issue therefor.
No instructions or declarations of law were requested by either of the parties to the action, and none was given by the trial court. The findings of the trial court are general, and are set forth, as aforesaid, in the judgment.
Upon the overruling of defendants’ motion for a new trial, the defendants were allowed an appeal to this court from the judgment entered in the trial court.
The evidence discloses that plaintiff and defendants are the proprietors of adjacent lands, and the controversy between the parties has relation to the boundary line between their respective lands. The record title to the land in controversy, Lot 16 of W. B. Searcy‘s Addition to the city of Republic, in Greene county, Missouri, stands in the name of the plaintiff (respondent), C. M. Courtner. On May 6, 1925, the plaintiff-respondent, C. M. Courtner, purchased from T. R. Wallace, and the latter conveyed, by proper dеed, to plaintiff-respondent, all of Lots 16, 17 and 18, of W. B. Searcy‘s Addition to the city of Republic. The three lots aforesaid are numbered from
Plaintiff-respondent, C. M. Courtner, testified on the trial of the instant ejectment action: “I am the owner of Lot 16, in W. B. Searcy‘s Addition to the city of Republic. I purchased the same on May 6, 1925, from T. R. Wallace, who was the (then) owner. At that time, I purchased Lots 16, 17 and 18. Since that time I have conveyed Lots 17 and 18, but not Lot 16. After I purchased Lot 16, I discovered it was occupied by lumber being piled on it, and I had it surveyed. The lumber is still on the lot. I requested them (defendants) to remove it, but they have not. . . . When I purchased the property I understood (each of) the lots to be 62 1/2 feet wide and 208 feet deep.” Cross-examination: “When I purchased the lots I went out there and looked them over. I saw where the lumber was piled. I also saw the fence on the east (west?) side. At that time I didn‘t know that Lot 16 was inside of that fence. I was buying three lots, practically an acrе of ground. I did not know how far the lots extended on each side of the house. Whether the three lots were east of the lumber yard fence, I did not give serious consideration. I saw the property at night, and did not step off the ground. I thought I was buying 187 1/2 feet. Shortly after I purchased the land I found the fence was on Lot 16. I learned this when I went to find where my ground was. . . . The fence is perhaps three and one-half or four feet over on Lot 17. The house and barn are built on Lot 17. Mr. Robertson was living on Lot 17 in 1923, and then Mr. Wallace moved in.” Plaintiff testified that the rental value of Lot 16 is $10 per month.
Sherman Robertson, husband of Myrtle Robertson, testified: “I owned the property in controversy. I lived on Lot 17 at the time I sold the Lumber Company property to Putnam (defendant). At that time lumber was stacked on the property west of the fence, and it was put there as a part of the lumber business. At the time I made my deed to the Putnams, so far as I ever knew, the property line of the O‘Neal Lumber & Coal Company was that fence on the east side. I built that fence there myself, or had it built, about thirteen years ago. Prior to that time there was an old wooden fence, which we tore down, and put up a woven wire fence.
In his brief, and seemingly by way of an additional abstract, the respondent (plaintiff) has set out a portion of the testimony of the witness, Sherman Robertson, as contained in the bill of exceptions, as follows: “Q. When you (O‘Neal Lumber & Coal Company) made your deed here to the Putnams (defendants), you may tell the court whether or not you regarded the line of the lumber yard as being the east line of the lumber yard fence? A. Why, so far as I ever knew, the property line of the O‘Neal Lumber & Coal Company was that fence on the east side. (By the Court): Q. What did you think about that fence as to being on the correct line? A. As far as we knew, we always regarded that fence as being the line. Mr. O‘Neal gave that property (the three platted lots) to my wife. Q. You just assumed the fence was on the true line? A. Yes, sir. Q. You say you never had the line surveyed? A. No. Q. You didn‘t know where it was; you were not claiming, nor do you intend to claim now, any of Myrtle Robertson‘s property? A. No, sir. Q. You (O‘Neal Lumber & Coal Company) were simply claiming to where the true line was; was that your intention? A. I had a fourth interest in the lumber yard there; my wife owned that property (the three platted lots), and so far as I knew the line of that fence was the property line. Q. You wеre claiming to it because you thought it was the true line? A. Just simply assumed that; we didn‘t know: we always understood that. (By the Court): In other words, you (O‘Neal Lumber & Coal Company) didn‘t mean to claim any property that wasn‘t covered by your deed, just because the fence was
The witness, T. R. Wallace, testified: “I am the Wallace who lived on the Lots 16, 17 and 18. I lived on the property a couple of years. During all of that time, while I had a deed to Lots 16, 17 and 18, we treated and considered that fence on the west side to be the west line of our property. We looked at the property before we purchased it, and that fence was there then. We always treated it as the dividing line between our property and the property of the Lumber Yard Company. I bought three lots, and understood they were sixty-two and one-half feet wide each. I never measured it, but considered I owned three lots.”
The defendant, H. W. Putnam, testified: “At the time I purchased the (unplatted) property, Robertson was living on Lot 17. Mrs. Robertson was the daughter of George O‘Neal. When I purchased the (unplatted) property, I got an abstract and deed, and took them over to Judge Gray‘s office, to be examined. It (the unplatted property) was described by metes and bounds, and he (Judge Gray) told me that the abstract was all right, but I had better have a survey made, or have Mr. Robertson, the man who was selling the property to me, to show me the dividing line. I knew Mr. Robertson, and I thought it would be better to have him show me the lines. He showed me the property which is under fence, and the fence on the east side was the line between the properties. I took possession of the property, and the first knowledge I had that we had anybody else‘s property was when I was notifiеd to get off. The fence he showed me as the east boundary line (of the unplatted land) is this fence on Lot 16. I have been in possession of the property up to that fence ever since I purchased it. I purchased the property in 1923, and have been in possession ever since. At the time I purchased it, Mr. Robertson was in possession. I did not know how many feet frontage I was getting. It was described just by links and chains, and when my attorney examined the title, he said the amount I was buying was shown in the boundaries. When I said Mr. Robertson was in possession of the lumber yard property when I bought it, I meant the O‘Neal Lumber & Coal Company.”
The fоregoing was all of the evidence adduced on the trial, as shown by the abstracts of record before us on the instant appeal.
The instant action is purely one at law, and was tried to the court below without the aid or intervention of a jury. The cause comes before this court, on appeal, without any declarations of law having been asked by the parties below, or given by the trial court. Therefore, the findings of fact by the trial court (as embodied in the judgment nisi) stand in this court in the same situation as does the ver-
In support of their contention, appellants rely upon the dоctrine or rule of law announced by this court in Cole v. Parker, 70 Mo. 372, 379; Battner v. Baker, 108 Mo. 311, 315; Goltermann v. Schiermeyer, 111 Mo. 404, 418; Hedges v. Pollard, 149 Mo. 216, 225; Lemmons v. McKinney, 162 Mo. 525, 531; Bartlett v. Boyd, 175 S. W. 947, 949; and Nichols v. Tallman, 189 S. W. 1184, 1185. The doctrine of law announced in the aforecited cases, and relied upon by the appellants herein, is thus stated: “Where one of two adjoining land proprietors takes and holds possession up to a fence which he supposes is on the true line claiming to the fence, his possession is adverse as to all the land within his inclosure. In such case it makes no difference that he was mistaken as to the location of the true line; nor does it make any difference that he did not intend to invade his neighbor‘s rights. The fact that he claimed tо the fence, not simply to the true line when ascertained, is sufficient and will constitute a disseizin.” [Goltermann v. Schiermeyer, 111 Mo. l. c. 418, 419.] Or, as differently stated in Cole v. Parker, supra, “if any one, by mistake, inclose the land of another and claim it as his own, his actual possession will work a disseizin; but, if ignorant of the boundary line, he makes a mistake in laying his fence, making no claim, however, to the land to the fence, but only to the true line as it may be subsequently ascertained, his possession is not adverse.” (Italics ours.)
The respondent, on the other hand, contends that the findings and judgment of the trial court are supported by substantial evidence, and that the judgment nisi should be affirmed in conformance with the dоctrine of law announced by this court in Jacobs v. Moseley, 91 Mo. 457, 462; Schad v. Sharp, 95 Mo. 573, 578; Krider v. Milner, 99 Mo. 145, 149; Skinker v. Haagsma, 99 Mo. 208, 215; McWilliams v. Samuel, 123 Mo. 659, 662; Brummell v. Harris, 148 Mo. 430, 443; Foard v. McAnnelly, 215 Mo. 371, 393; Ackerman v. Ryder, 308 Mo. 9, 25; and Ware v. Cheek (Mo. Sup.), 201 S. W.
The line of demarcation or distinction between the two rules or doctrines of law aforestated (that is to say, the distinction between the one doctrine, contended for by appellants, and the other doctrine, contended for by respondent) lies in the fact (as determinable from the evidence in any case wherein a disputed boundary line is marked by a fence between contiguous lands) whether the party in possession of the land in controversy claims ownership of the land only to the true line, wherever that might be, or whether such party claims ownership of the land to the fence. [Foard v. McAnnelly, 215 Mo. l. c. 393; Battner v. Baker, 108 Mo. l. c. 315.]
Having in mind the two doctrinеs of law aforesaid, as contended for by the respective parties herein, and the line of demarcation or distinction between those two doctrines of law, as just stated by us, is the evidence herein sufficiently substantial to support the findings and judgment of the court below? The evidence is uncontroverted that the respondent, C. M. Courtner, holds a good record title to the land in controversy, described as Lot 16 of W. B. Searcy‘s Addition to the city of Republic. There is no evidence herein that the unplatted land (which is described by metes and bounds, and to which the appellants hold a good record title) overlaps the platted Lot 16. That is to say, there is no evidence in the record before us that there is an actual shortage of area, either in Lot 16, as platted and conveyed to respondent, or in the unplatted land, as laid out by metes and bounds, according to the description of said unplatted land as contained in the deed of conveyance from O‘Neal Lumber & Coal Company to the appellants. In other words, the appellants and respondent, by their respective deeds, acquired the record title to the precise land described in their rеspective deeds, and neither tract of land (as described in the deed conveying the same) overlaps the other. Such being the evidential fact, the only defense available to the appellants, in bar of respondent‘s ejectment action, is adverse possession of the land in controversy by appellants and their grantor, O‘Neal Lumber & Coal Company, for ten (or more) years prior to the commencement of the instant ejectment action. Al-
Have the appellants made proof of adverse possession of the land in controversy for the pеriod of time (ten years) prescribed by the Statute of Limitation, so as to vest title thereto in appellants? The record before us answers the question in the negative. We have set forth in this opinion the entire evidence bearing upon that question. The evidence shows that George W. O‘Neal, while he was the sole owner of both the platted lots and the unplatted land (which were held by him as a single tract or parcel), erected a wooden fence across the lands. There is no evidence herein that George W. O‘Neal erected the fence with the intention or purpose that the fence was to be, and to constitute, the dividing line, or monument, between the platted lots and the unplatted land; the logical inference to be drawn from the evidence is rather to the effect that the fence was erected to serve some personal use or convenience of George W. O‘Neal, the then owner of all the lands, platted and unplatted. The fence extended across the lands in 1910, when George W. O‘Neal conveyed the platted lots to his daughter, Myrtle Robertson, the respondent‘s predecessor in title, and when he conveyed the unplatted land to the O‘Neal Lumber & Coal Company, the appellants’ predecessor in title. In neither of the deeds of conveyance so made by George W. O‘Neal (so far as the record discloses) is the fence mentioned as the dividing line, or monument, between the platted lots and the unplatted land conveyed by those respective deeds. It is true that the evidence shows that Myrtle Robertson and the O‘Neal Lumber & Coal Company, in the year 1910, took possession of their respective lands to the line of the original wooden fence, which each owner mistakenly supposed аnd assumed to be located on the true boundary line between their respective lands. Sometime thereafter, the original wooden fence was torn down, and a woven wire fence was erected along the line of the old wooden fence, originally erected by George W. O‘Neal. There is not a scintilla of evidence that Myrtle Robertson (the former owner of the platted lots, and the respondent‘s predecessor in title) maintained or repaired any part of the original wooden fence, or any part of the woven wire fence that was later
In Ware v. Cheek, supra, an ejectment action, this Division of this court said: “For the plaintiff the record shows: (1) A good paper title of Outlot 42 in the plaintiff; and (2) that the strip of ground in dispute is and was a part of such Outlot 42. These facts the court was practically forced to find under the record. With these findings for the plaintiff, the pleadings left but one open door for an escape by the defendant, i. e., adverse possession for ten or more years. Does the evidence show such adverse possession? We think not. The most that the evidence shows is that for twenty-five years there had bеen a fence just where the fence is now, and that this disputed ground is on defendant‘s side of the fence. This does not suffice to show such adverse possession as will make title. It might tend to show possession, but mere possession for the statutory period is not sufficient. The possession must be accompanied by a claim to the title, or at least (by) acts tantamount to a claim of title. As said in Stevenson v. Black, 168 Mo. l. c. 560, 68 S. W. 909: ‘Claim to ownership is essential to give to the possession an adverse character. . . . The mere showing of possession alone is not sufficient to call into play the rule now under discussion. The very basis of а title by limitation is a claim of ownership for the statutory period. . . . . . Possession without claim of title will not suffice to shift the burden to plaintiff within the rule last named.” (Italics ours.)
We are of opinion that the findings and judgment of the circuit court are supportеd by substantial evidence, and therefore the findings and judgment of the circuit court in the instant law action (which was tried to the court below, sitting as a jury, without a request for, or the giving of, declarations of law) are conclusive upon this court, for this court cannot weigh the evidence in a law action. The only assignments of error made by the appellants herein (two in number) are directed solely to the question of the sufficiency of the evidence to support the findings and judgment of the court below.
It follows that the judgment of the circuit court must be affirmed, and it is so ordered. Lindsay and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur.