*1 Wright v. T. L. and Wilma Company, Hart Hart John (2d) 39670. 196 S. W. 272. Corporation, Appellant. No. September 9, One, Division
Howard R. Maness and Chas. B. for appellant. Butler *2 respondents.
Tedrich & Tedrich for try OSDOL, VAN in two counts to and determine C. Action *3 title, along ejectment possession and in for of a narrow tract of land Defendant, the east Ripley County. or left bank of River in Current answering, alleged tract, prayed and ownership of the for adjudged declaring. plaintiffs so The trial and to be court found surveyed lying of owners of land east of a line a commission lying surveyors, and the owner of west of found defendant to be land surveyed. to the The court found be entitled ejected possession line, land east of and ordered defendant of the damages denied and Plaintiffs’ claim for rent and was therefrom. taxed cause, including survey, the costs the cost against appealed. Defendant defendant. has north 110 and is in the
The land involved is
feet in width
situate
East, Ripley
2
27,
North, Range
Township
fractional half
23
of Section
County.
27 near
corner
River enters
the northwest
Current
Section
half.
southeastwardly through the north fractional
thereof and flows
Wright
in the river.
T. L.
of a small island
See
Defendant is the owner
The
121,
S. U. controversy. land in end the south of the river at and July Company, recorded warranty from By deed to a tract land ten feet acquired had title of 22, 1903, defendant extending south- north of the section at the commencing wide eastwardly of river. deed described east bank 400 Easterly
east line of the “running tract as in an direction with meanderings way of said river in such a that said line at all times shall (10) be ten feet (east) equally North of the said river at all times distant (Our italics.) therefrom . . .” The described narrow strip conveyed tract or of land had been Lumber Com- pany Hicks one in 1896. The tract extended to across present Highway location of S. No. U.
By warranty deed, 21, 1929, recorded November from J. A. Thomas (junior) Thomas, conveyed strip and Ollie W. defendant was “running land right-of-way from the north line of said State unnecessary Highway (it any in the to notice difference locations Highway being Highway 14), strip of State 42 and U. No. said S. running northwardly along 100 feet East wide bank strip feet; being Current River 1-200 said ten west italics.) (10) (Our east the East bank of Current River.” year grantors, by warranty In the deed but same same January 7, 1930, to land “100 feet recorded being (north) in width of the said State feet west running meandering with the River Road north of Current 27, half of said Section to the north line of the north fractional (y2) being edge strip the water’s the west line said land feet from (Our italics.) said Current River.” May plaintiffs acquired that of the north fractional 1943, part Highway 27, S. No. of the river north U. half Section Day. However, excepted by warranty one deed from conveyed, “being strip property on the west side ad- being lying along left bank of Current River feet wide and strip this It that Grantor’s title to jacent thereto. is understood *4 concerned, quit- to is intended be a far as this doubt sainé in the excepted lands as described The further claim deed.” tracts from J. A. Thomas warranty the two hundred-foot deeds to two warranty deed the ten-foot tract to W. Thomas and Ollie we have noticed Company, which three deeds from Day, property their from plaintiffs purchased the time supra. About its land to the east line of sought ascertain defendant Andrews, County by William M. survey be made to and caused averaging 107.27 County, surveyed a line Surveyor Ripley who con- off,” and defendant “breaks river bank from where the feet surveyed. “It over wasn’t west of one foot a fence structed bought their land. plaintiffs after a week” of title to -the framed as raise issues pleadings The adjacent river. to the 110 feet the whole of possession right correct eastern to those the issues the evidence narrowed But consequent conveyed to defendant lands do Plaintiffs of the line. land east possession right possession all right title and seriously press claim of not adjacent to the stipulated river. It was that J. A. Thomas (junior) and Ollie W. Thomas were the common source parties’ of thé titles to the two hundred-foot of land. However, tracts A. J. Thomas (junior) and Ollie W. and, Thomas were the respectively, devisees son and widow of A. (senior), J. Thomas who died in 1927.
The trial judgment court’s recited finding that, since defendant’s “title has acquired, been the East River, bank of Current where adjoins same said tract aforesaid has washed changed and altered and and that the East bank said Island Chute perceptibly has remained same; predecessor defendant or its in title, constructed a fence approximately 10 feet edge East of the waters on the left or East bank” of the river. Before entering judgment, the trial court ordered a surveyors commission of beginning a line on the northern right way Highway of U. S. 14No. and 110 feet east of the Chute, east bank of Island the line to run northwardly parallel with the east bank of Island point Chute to a opposite' the north end of the island and draw, to the north bank of a northwardly thence (mentioned feet east of the “fence” in the findings recital of judgment quoted the trial court’s supra) to the surveyed north line of the line accordingly section. The is the established the trial court’s as the division or boundary line parties. between the lands of the The line varied to east and to the west across line of the new fence erected square with the result that about 800 feet more area was contained west of the established line than was contained west of defendant’s new fence.
Relating “fence,” referred which was to witnesses as “the fence,” it particularly old woven-wire will be observed more infra approximately that the evidence shows the fence was built in 1920 year ten feet back the bank of the river. In the 1917 or 1918 pilings extending the defendant had driven on a line upstream 620 feet pilings from the north end of the island. The line of the ran “about bank of the river. pilings sup- feet to feet” from logs floating which arrested on the river. The ported boom boom tendency divert water logs had a toward the east bank of gravel lying Chute. A bar through river and down Island low in the upstream extends about 1900 river west of the island from the The current of the river from the north end end of the island. north against the east bank gravel bar to the island of the river. point opposite east bank down to a from the has been washed Soil washing away “Most of the of the bank is of the island. north end *5 It is inferred the erosion of the east bank pilings are.” where these pilings the were driven. or 1918 when The east in 1917 commenced the end of island has now north of north the become of the river bank fence, places, “on top woven-wire the that the old washed ’’ bank, points the river has washed soil from be- some of the fence, neath points the fence although at other the is ten or more feet from the river bank.
It by defendant, appellant, contended that the trial court erred in failing surveyors (and to order line render the a judgment establishing surveyed) line so in accordance the with the descriptions deeds, is, line defendant’s that a 110 feet from the by any (The parties, plaintiffs defendant, river. seem untroubled possible edge” distinction “bank of between the terms “water’s in,the descriptions deeds, supra.) Current River.” See two Thomas has no complaint Defendant of the 110 feet east of the line established point east bank of Island the the end of the opposite Chute to north island, draw; but, concerning and to the north the the line from side of point urges defendant have con- northwardly, should tinued at the distance of 110 feet east of the bank of the river. More- over, correctly contends, though line was estab- defendant even the finding judgment, lished the trial the court’s for was square erroneous, gained inasmuch as defendant nevertheless about finding judg- judgment the trial trial court’s court’s —the ment, says, costs, have been defendant; defendant should for and the surveyors’ including against plaintiffs. taxed fees, case, court will the an action at tried without This review law equitable the and the as in an jury, upon both law evidence suits of clearly be unless erroneous, nature. The will not set aside given to the trial regard opportunity and due will be the court credibility (d), judge witnesses. Subsection Section 1943, p. Missouri, Laws of Civil Code of Missouri questions it we case would seem have for consideration our whereby acquired three defendant deeds construction river, particularly question in its lands describing language conveyed; used in the lands tended effect if the review the evidence order ascertain should we correctly parties was established under dividing the lands harmony interpretation deeds) true (in with the facts grasped been that the judgment. It has noted trial court trial court’s testimony location of “the old woven-wire fence” upon the part of that evidencing the eastern as (acquired Company) from strip of ten-foot of the island from the north end northward from extending section; the north line of the and the trial the draw to north bank to determine the measuring feet to eastward court descriptions must have construed the dividing the lands contiguous describing.lands to the ten- Thomas deeds in the two Company. from defendant strip foot that, by language by urged It describing the east line of the tract as Doniphan Lumber way such that said river-“in meandering running with the *6 at shall all (10) (east) times be ten feet North of the said river equally all times distant therefrom,” convey it was intended which, tract of land notwithstanding and to whatever extent erosion' changed had the line of the river bank conveyance, since the Would nonetheless continue to extend feet in ten width from river the bank. We argument. cannot follow defendant’s The instrument executed by Doniphan Company Lumber conveying was deed a tract of land. land, Note the having location, difference of a fixed to other material things, regarded objects also as legal rights, of which are aof movable I, Tiffany, character. Yol. The Law of Real Property, Ed., 3d sec. p. 1. With distinguishing the land, characteristic immovability fixity mind, in location, plainly or it is description seen the conveyed east line of the tract land the Doniphan deed of Company running Lumber “at all ten north' (east) times” river bank boundary the was the delineation of a line indicating —a (We, the limit of extent conveyed. furthest of the tract course, are treating boundary not here with the might western which changed be by the doctrines of accretion and if applicable.) reliction
Defendant that, further contends though even the evidence shows that the has the eroded east bank since defendant ac quired strip, the ten-foot acquired defendant nevertheless land adjacent virtue of two Thomas deeds to 110 feet wide deeds, river bank. The respectively words two Thomas describ boundary ing conveyed west hundred-foot twQ tracts to be ten feet “east of the East bank” and ten feet from the “water’s might edge,” justify contention, if defendant’s the words be con apart evidence; in yet, considering sidered other facts with facts and words association other circumstances shown' in ’ the parties intention, which tend to indicate evidence doubtful .it meaning apparently parties expressed, is that and the facts evidence, which tend circumstances shown to make clear the intention, meaning intended, parties’ we think. demonstrate acquiring purpose-in inferred defendant’s It is the three tracts bank, of the river the river was control order that east of gravel operations lumber and on the river would be conveyed by two tracts protected. purchasing the Thomas defendant, it course, knew had the land deeds, the de Company, the deed from Lumber and must have scribed in eroding. If of the river was the words of the east bank known by defendant, interpreted as deeds were contended narrow Thomas (due narrowing prior areas erosion and isolated conveyed by Doniphan Company) the tract lie the west boundaries west of tracts belonging may It is deeds. seen'that these areas now the Thomas convered may bank; the river or areas erosion, such hereafter lie, due possible the river a result of the bank’s contiguous to bank as become future erosion. It would not seem reasonable the so intended. considering descriptive But words of the Thomas deeds associa parties’ tion with the purpose, and with the circumstances deed, it the tract con *7 veyed bailk, the the are the opinion erosion of river we of providing hold that the words the west boundaries of the hundred- two edge foot tracts should be ten feet from the bank water’s and, effect, boundary in a used relation in referred to the east conveyed by Company; the of Lumber Doniphan tract deed (to parties deeds) and that the intended that the west the Thomas conveyed of the two hundred-foot tracts should be co boundaries boundary conveyed by tract the extensive with the east interpretation Company Lumber deed. rules interpretation are unlike contracts. And deeds not the rules of considering in purpose in the the the execution circumstances, the the deeds and other facts extrinsic to Thomas ’ parties intention, opinion the we are of the tending but to show deeds applicable principles the transgressed construction we have not by here, construed seen or shown the where, as an instrument Paisley meaning. Lucas, See v. 346 Mo. evidence to be doubtful Surveying 441, on 262; 143 W. 2d and Sec. Clark 827, S. p. 529. Boundaries, Ed., 2d ascertain if the examine the evidence to eastern
But we must conveyed by Company -Lumber tract line of the that the eastern line of the defendant’s land physically delineated (by was and the trial by the Thomas deeds certainty. reasonable determined with judgment) court’s (other bank) indicating than the or monument mark physical No along boundary tract exists the east bank of the ten-foot the eastern evidence, However, according to the the bank Chute. of Island by accretion; or altered erosion not been has of the Chute bank of judgment, “the East said Island in recited court trial Indeed, said, same.” as we have perceptibly has remained Chute 110 feet east of the of the line established complaint no defendant has line Belating to the northward Island Chute. east bank testimony Clark, of one who of Island end from the north Chute— (senior), by Thomas was introduced A. employed J. had been directed Thomas “in the had been he The witness stated plaintiffs. along fence the east bank of a woven-wire build 1920” to Spring of “just it back 10 feet from river Hart, set said river. Thomas it.” Company owned Clark testified Wright because bank “about or 12 back from fence the woven-wire set that he ” The 10 foot back. approximately . . . bank of edge fence have remained in- the woven-wire portions that shows evidence down, has been taken' fence fallen or has where and, places tact, had been imbedded trees are of the fence wires where the the marks yet discernible. The line fence can still be old woven-wire certainty located with throughout reasonable the distance approximately the north end of bank of Island Chute river to the north line of the section. agree
We
adopt
with and
of the trial court that the fence
view
(the
sig-
yet discernible)
of which
set
1920 is
decisive
establishing
present
nificance as the monument
division
for
(senior)
between
of Thomas
parties.
the lands of the
The statement
“Wright
Clark that
it” and the direction
owned
given
feet from river
Clark
Thomas to set the fence “back 10
bank”
of defendant’s
were admissions that
the eastern
was,
bank,
is, admissions
ten feet from the river
that
subsequently
fence.
the land to
erected
owned
actually
And the
erected
Clark
fact that the woven-wire fence was
“10
from the river
“approximately
or
feet”
foot back”
or
surely
tending to
of defendant’s
bank is
evidence
show that the whole
erected.
land “ten
west of the fence
feet in width” was contained
awarding
Attending
contention of error
*8
were,
least, partially
recovery
plaintiffs
at
plaintiffs
costs to
—the
(an
counts
law),
upon
in
at
and
both
successful
their action
action
by
judgment determined the
petition.
of their
court
The trial
by the
east
line established
plaintiffs
be the owners of lands
ejected
1409 R. S.
survey,
therefrom. Section
and ordered defendant
1409, providing
A.
for the award of costs
1939, Mo. R. S.
sec.
in
any
several counts
one of
discretion of
court where
defendant,
is not
any
joined
found for the
petition
is
upon
issue
points
by
was at various
applicable.
erected
The fence
to be in
lands,
was found
and defendant
plaintiffs’
over and across
Moreover,
plaintiffs’ land.
wrongful possession
of some of
of the various
square
mean
800
plaintiffs
while
lost some
surveyed
fence erected
and the
between
areas
and west
was erected
fence
by defendant,
that defendant’s
it has been noticed
line of
by
the east
defendant as
of the line claimed
one foot west
account, it was shown
Taking this into
property.
hundred
or sixteen
fifteen
plaintiffs gained “probably
evidence that
only a
recovered
that
Although it is clear
(square) feet.”
by them, their
land claimed
portions, of
portion, or small
small
they
recovery, and
extent
to the
successful
action was
that
by
providing
intended
statute
sense
prevailing parties
1939,
S.
1406 R.
costs. Section
recover his
party prevailing shall
prevailing
holding
to be the
plaintiff
A
Mo.
A.
case
R. S.
sec. 1406.
partially
costs, although he was but
his
party
entitled
recover
and
Oregon County,
action,
v.
persuasive.
is
Underwood
in the
successful
11, p.
S., Costs, sec.
20 C. J.
And see
2d 597.
514,
320 Mo.
S.
W.
seq.
277 et
by
It
suggested
authority
defendant that the court had no
,
survey
to order a
dividing
commission to make the
of the line
parties’ properties
survey
and to award
the costs of the
favor of
plaintiffs, the prevailing parties.
universally
It is
judgments
held that
certainty
should
adjudicated
describe with reasonable
therein,
the land
ejectment
both in
and
to determine title.
actions
Tillman v. Hutcher
son,
473,
348 Mo.
PER CURIAM:—The Osdol, Van judges court. All concur. adopted opinion as the Herzog Herzog, Appellants, v. Violet Ross and Vertia Richard R. (2d) 268. 39837. 196 S. W. McCabe. No. and Jeanne *9 September 9, Banc, en
Court