| Mo. | Feb 5, 1894
The action was ejectment to recover the north fractional half (left bank of the Gasconade river) of section 30, township 41, range 8, in Maries county. The answer was a general denial.
It appears from the government plat, offered in evidence, that the Gasconade river flows through the north half of section 30, leaving about twenty acres of the northeast quarter on the south side. Plaintiff had a patent from the United States dated in 1882, describing the land as in the petition and naming the quantity as' twenty and ninety-one hundredths acres. Defendant, it was agreed, had title from the govern
It appeared from the evidence that the land claimed by the defendant, as comprising the southeast quarter of the section, had been inclosed since 1852, and thus occupied by himself and his grantors. Plaintiff claimed that the north fence of defendant’s inclosure was so far north of the line between the quarter sections as to include thirty-five or forty acres of the fractional northeast quarter.
The surveyor of the county was called by plaintiff as a witness, to establish his claim. He testified in substance that he first measured off to defendant one hundred and sixty acres as the southeast quarter, and gave what remained between that and .the river to the defendant; that the line between the two tracts thus ascertained was inside defendant’s field; that as much as thirty-five or forty acres of plaintiff’s land is in defendant’s field.
In detailing how this result was reached he stated that he found the government corners at the southeast and southwest corners of the section; that he ran a line north from the southeast corner of section 30, on the east side, eighty chains to a point; and from the southwest corner of the southeast quarter of section 30 he measured north eighty chains, on the west line of the quarter section to a point, and the line between the points he established as the true line between the southeast and the northeast quarters of the section. He also testified that there were twenty-nine chains between that line and the river.
At the close of all the evidence defendant requested the court (sitting as a jury) in substance, to declare the law to be that the true Method was not used by the
After defendant had closed, plaintiff introduced the surveyor of Osage county for the purpose of proving that he had recently surveyed the land and ascertained the location of the line. Defendant objected on the ground that the evidence was not in rebuttal, but should have been offered in chief. The objection was overruled. The testimony of this witness fixed substantially the same line as was established by the surveyor of Maries county, but he did it by running half a mile, instead of eighty chains (one mile), from the south line of the section. No witness definitely located the line.
No evidence was given of damages, rents or profits. No declarations of law were asked by the plaintiff, or given by the court. The court, sitting as a jury, found for the plaintiff, and assessed his damage at $25, and the monthly value of the rents and profits at three dollars, and entered judgment for the possession of the land, “to wit: The north fractional half (left bank Gasconade river) of section 30, township 41, range 8 west,” and for damages, rents and profits.
I. Prom a mere reading of the foregoing statement it is manifest that the judgment should not stand. The manner of finding the dividing line between the southeast quarter of the section, which was adopted by the surveyor of the county, if taken, as shown by the record, would place the line a mile north of the south line of the section. He testifies that he commenced at the southeast corner of section 30 and ran north on the east line of the section eighty chains, and the same distance on the west line which gave to the
In addition to this manifest error of the witness, the court refused to declare, as a matter of law, when requested by defendant’s counsel, that the measurements made by the surveyor would not result in finding the true dividing line. As no declarations of law were given, we must assume, from the fact that the one asked by the defendant was refused, that the court based its decision on the testimony of this witness. This evidence did not authorize a judgment for the possession of any land held by defendant.
II. The error in rendering judgment for damages and monthly rents and profits, when there was no evidence on the subject, could be corrected here by a remittitur,' which plaintiffs offer to allow, were there no other errors requiring a reversal of the judgment.
III. The judgment was for the recovery of the “north fractional half (left bank of the Gasconade river) of section 30, township 41, range 8 west.” Defendant admitted on the trial that plaintiff was the owner of the land as described. The evidence showed, without conflict, that defendant was not in possession of at least a portion of this land. The issue in the case was, what portion of the land, if any, was in defendant’s possession. It seems to me that the judgment settles nothing, but leaves the rights of the parties where the pleadings and admissions left them.
The judgment for possession, where division lines are in dispute, should describe the land adjudged with sufficient certainty to enable the executive officer of the court to correctly and intelligently execute a writ of possession.
Judgment reversed and cause remanded for a new trial.