149 Mo. 216 | Mo. | 1899
Ejectment to recover about sixty acres of land in Lincoln county. The facts sufficiently appear in the opinion.
I.
This controversy arises out of a difference between the surveys made by F. W. Rohland, in 1846, and by John E. Wilson, made in 1875, and those made by W. G. Seaman in 1890 and by F. D. Brown in 1892, as to the proper dividing line between United States survey 757 in fractional section 18, township 48, range 3 east,and fractional sections 7 and 12 of the same township and range.
If the surveys made in 1846 and 1875 are correct the defendants have title, and if those made in 1890 and 1892 are correct the plaintiffs have title and are entitled to recover unless the defendants have acquired title by limitation.
United States survey 757 was confirmed to Jonathan Woods in 1811. Prior to his death, in 1846, Ira Cottle had acquired title thereto. After his death the land was platted and partitioned, and lot 4, containing 960 acres, was set off to Harriet Cottle. She died some time prior to 1875, and her property was platted and partitioned and lot 1, containing 166.80 acres of this partition, was assigned to L. B. Cottle and R. A. Pollard, and lot 2, containing 351.80 acres, was purchased at the partition sale by the defendants John W. Pollard and L. B. Cottle, and in 1876 the defendant John W. Pollard purchased the interest of E. A. Pollard in lot 1.
Immediately after defendants acquired said lots 1 and 2, they took possession thereof, fenced it, except about ten or fifteen acres in the noi’theast corner which was covered by a portion of Brown’s lake, which was fenced in 1886 or 1887, and a small triangle at the northwest comer, caused by running the west line of survey 757 due west from the Ouivre River and then northwest, instead of towards the northwest all the way from the river, thereby leaving a triangle between the west line of survey 757 and the east line of survey 524, no part of which however was in sections 7 and 12, unless the north line of survey 757 extended over the south line of sections 7 and 12. Defendants remained in undisputed possession from 1875 to 1892, cultivated all that'was arable and paid taxes on the whole of it. The plaintiffs and their ancestors lived on their land in sections 7 and 12, saw defendants erect the dividing fence between their respective lands in 1875, saw the acts of ownership exercised by defendants over the whole of the land claimed and cultivated by defendants, believed that the land belonged to defendants, never asserted any claim to it until after the surveys made by Brown and Seaman in 1890 and in 1892, and then claimed the sixty acres here in controversy upon the theory that the Brown and Seaman surveys established the correct dividing line, instead of those made by Rohland and "Wilson, and that as they and defendants had been claiming only to what they both believed wás the true line, defendant’s possession had never been adverse, and hence they had acquired nO’ title by limitation. Survey 757 was located and surveyed long before the lands around it (including sections 7 and 12) were sectionized. Brown made his plat from notes and not from
However, both parties tried the case below upon the theory that sections 7 and 12 and survey 757 adjoin, and hence this court will treat such to be the fact.
Taking the river at the southwest corner of survey 757 as the initial point, and 34 chains as the proper length of the west line of the government survey, it f ollows that the Rohland and Wilson surveys which called for 39.64 chains made the west line 5.64 chains too long, and assuming the southern lines of sections 7 and 12 and the northern line of survey 757 to be coincident, it follows that survey 757 overlaps section 7 and 12 at the northwest corner, 5.64 chains. On the same basis and assumption survey 757 overlaps sections 7 and 12, at the northeast corner, 4 chains. This is the substantial result of the showing of both parties, and it results that the legal title to this overlapping portion has been and is in the plaintiffs and their grantors and not in defendants.
II.
The plaintiffs having the legal title are entitled to recover, unless the defendants have acquired title by limitation. There is no plea of the statute of'limitations in the an-SAver. There was a plea, in the nature of an estoppel, that plaintiffs and their grantors saw defendants erect the dividing fence, and made no objection to its location, and that they knew defendants had placed the division fence on the line fixed by the plat in partition of the Harriet Cottle estate, and consented and acquiesced therein. This defense
The evidence clearly discloses that defendants have been in possession of all the land in' dispute since 1875, except what was covered by the lake in the northeast corner, and the small triangle, of about two acres, in the northwest corner; have cultivated it, paid taxes on all of it, and acquired or purchased it at the partition sale of the Harriet Cottle estate as it appeared on the plat of the commissioner at’ that sale. The plaintiffs are not now and never have been in possession of any part of it. They and their ancestors set up no claim to it until 1890, when Seaman made his survey, or until 1892, when Brown made his survey, and did not bring this suit until 1894. The defendants had, therefore, the open, exclusive, uninterrupted, notorious and continuous possession of it for at least fifteen or seventeen years before plaintiffs asserted any claim, and for nineteen years before this suit was instituted. It also appears that their possession was adverse. They, therefore, had acquired a good title by limitation. But plaintiffs invoke the doctrine, recognized and enforced in this State in Walbrunn v. Ballen, 68 Mo. l. c. 166, that, “if one, by mistake, inclose the land of another and claim it as his own, his actual possession will work a disseizen; but if ignorant of the boundary line, he makes a mis take in laying his fence, making no claim, however, to the land up to the fence, but only to the true line as it may be subsequently ascertained.....his possession is not adverse.” This doctrine was recognized in this State long before that decision and has been reaffirmed since. [Cole v. Parker, 70 Mo. l. c. 379; Battner v. Baker, 108 Mo. l. c.
Goltermann v. Schiermeyer was again before this court in Banc, in 125 Mo. 291, and these principles were recognized and reaffirmed, although the judgment below was reversed for reasons hereinafter referred to.
Applying this rule to the ultimate facts in this case, it is clear that the defendants were in possession of the land in controversy, with the exceptions herein noted, for more than ten years before the institution of this suit; that they claimed to own up to the fence they erected in 1875 or 1876, and never until after the Seaman survey in 1890, or the Brown survey in 1892, was there any question between them and the plaintiffs or their grantors that they were the legal owners or rightfully in possession. There never was, during all that time, any act or admission on their part that they only claimed to the fence in the event it was the true dividing line. Both parties believed the fence was on the true dividing line and each claimed to that line, unqualified and unlimited by any consideration or contingency or subsequent ascertainment of the true line. • The evidence shows that after the defendants’ title had ripened by limitation, and after the Seaman survey, the plaintiffs claimed the land, and plaintiffs’ testimony is to the effect that defendants expressed a willingness to give it up and move the fence to the true dividing line if a survey proved that it was not on the
The burden of bringing the case within the exception to the rule of a possession for the period, of limitation not being adverse between adjoining owners, because always held subject to a subsequent ascertainment of the true line, was upon the plaintiffs, and must clearly show the existence of such qualified claim to possession at some time prior to the ripening of title by limitation. Conflicting testimony as to vague or uncertain conversations occurring after the rights of the party in possession had been fixed by possession and limitation, is not sufficient to reduce the character of the possession or to divest rights so acquired. The policy expressed in statutes of limitation" would be practically worthless, if parol testimony was permitted to nullify rights conferred by the statute. In personal actions promises must be in writing in order to take the case out of the operation of the statute of limitations, and by parity of reasoning the same principle should obtain in real actions. The reason of the rule as to personal actions is to prevent the possibility of perjury, and the same reason applies with equal cogency to real actions. True, the rule as to personal actions is statutory, and there is no such statute as to real actions. But it
hi.
Except for the uncertainty as to the portion in the north-cast corner which was covered by the lake which was not inclosed until 1886 or 1887, and the triangle, in-the northeast corner, there would be no necessity for remanding the cause.
As was said in Goltermann v. Schiermeyer, 125 Mo. l. c. 300, possession, under our statute (sec. 6768), “under color of title, of a part of a tract, in the name of the whole tract claimed, and exercising during the time of such possession the usual acts of ownership over the whole tract so claimed, shall be deemed, under the statutes of limitation, a possession of the whole of such tract, is not applicable to cases of interfering or lapping surveys forming boundaries between adjacent proprietors.” In the case at bar there is no evidence, sufficient to- predicate an intelligent' opinion upon, that the line, as established by the Seaman and Brown surveys would take in the whole of the ten or fifteen acres in the northeast comer, covered by the lake, or if not, how much it would embrace. The plats before us are not uniform and hence not satisfactory. On one of them the lake seems to extend to the dividing line, while on the other the lake does not extend as far north as the dividing line. We are therefore unable to ascertain the fact as to whether the