Jacobs v. Moseley

91 Mo. 457 | Mo. | 1886

Black, J.

This was an action of ejectment for 6.19 acres of land. The contest arose from a dispute as to the dividing line between the southeast and the southwest quarters of section 31, township 49, range 11, in Boone county. Plaintiff acquired the southeast quarter by a deed from his father, dated in 1876. He testified that he had lived on the land since 1863 ; that his father then gave it to him, and that the deed was made in pursuance of that agreement. A Mr. Dinwiddie owned the other quarter, and, in 1877, sold the same to Wm. Moseley, who died in 1882, and the defendants are his widow and heirs. PMntiff, in 1867, while in possession of his farm, under the agreement with his father, built a rail fence along what he assumed to be the line. Subsequently, Dinwiddle planted a hedge in lien of the north half of the fence, and that and the south half of the-rail fence continued to define the possession of the respective parties down to the commencement of this-suit.

Dinwiddie testified as follows: “In 1871, I saw W. H. Jacobs, and told him I wanted to set out a hedge, and he said all right; that I could move my fence over so as to set the hedge on the line, and have room to cultivate it; I moved my fence and put out the hedge,, about one foot west of the line, on my land; there is a-, large rock on the corner of my land ; it was there when I first knew the land, and is still there; it was always, known as the corner-stone ; there was another cornerstone at the south end of the fence, near Mr. Moseley’s gate-post; the fence was run on the line between these two corner-stones, and when I planted my hedge, to be-sure that I put it on my line, I put it about a foot west of the corner-stones ; I grew my hedge into a fence Mr. Jacobs saw me cultivating and growing and never made any objections, or told me it was not on the line.”

The plaintiff testified that, in 1880, he and William Moseley, the deceased, had the line surveyed by Mr.. Wright; that this survey placed the hedge and rail fence on him; that the corners placed by Wright were-removed by some one, and he had the line re-surveyed by Wright and three other persons, all county surveyors of different counties. These surveyors all concur in saying that, by their survey, defendants are in possession, of 6.19 acres belonging to plaintiff’s quarter section.

Jacob EL Moseley, a son of the deceased, says, that before the Wright survey, and in 1878, Mr. Quinn surveyed some lands for him and a neighbor, on the south of the land in question; that Quinn fixed the south corner here in question one foot west of a rock, which had stood as a corner mark as far back as he could remember, and that this corner, fixed by Quinn, was in a line of the continuations of the hedge ; that this threw the rail fence about five feet on the plaintiff. Surveys made by Shields, as far back as 1836, were put in evidence. They showed that he indentified these rocks, spoken of by Din-widdie and Moseley, as half-section government monuments.

The case was tried by the court, without a jury, and was made to turn upon two instructions. That for the plaintiff is, in substance, if Dinwiddie and plaintiff agreed upon a line, in 1871, as the true line, and the former was induced to plant his hedge near such agreed line, still, if plaintiff had no title to the land occupied by him, he is not estopped from claiming the land in dispute. The other declaration of law, given for defendants, is,- that if, prior to 1879, a boundary line was «established by the mutual agreement between the plaintiff and persons under whom the defendants claim, and that the parties to the agreement, or those claiming under them, respectively, held possession up to the agreed line, then plaintiff cannot dispute its correctness.

It is the well-settled law, in this state, that where two adjoining proprietors are divided by a fence, which they suppose to be the true line, each claiming only to the true line, they are not bound by the supposed line, but must conform to the true line, when ascertained. Tamm v. Kellogg, 49 Mo. 118; Thomas v. Babb, 45 Mo. 384. Where there is a dispute as to the true division line between adjoining proprietors, or the line is uncertain, and they are both ignorant as to its true location, and they fix and agree upon a permanent boundary line, and take possession accordingly, the agreement is binding on them and those claiming under them. Such an agreement is not within the statute of frauds. Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, 16 Mo. 273; Turner v. Baker, 64 Mo. 218; Acton v. Dooley, 74 Mo. 63; Browne on Frauds, sec. 75. We entertain no doubt but such, an agreement may be put in evidence in an action of ejectment, as a defence under the general denial. It need not be specially pleaded.

By referring to the defendants’ declaration of law, it will be seen that it predicates a defence upon an agreement made prior to 1879. This excludes any consideration of the Quinn and Wright surveys, as alleged agreements connected with them, for they were both made subsequent to that date. The agreement then relied upon by the defendants must be one between plaintiff and Dinwiddie, and there is no evidence of any agreement between them, unless it arose at the time the hedge was planted, in 1871. The evidence of Dinwid-die, which is relied upon as proof of the agreement, shows that he planted the hedge with reference to what he supposed to be the government monuments— the true line — and not with reference to any adjusted line. There was then no question made as to the location of the true line. An agreement fixing a boundary line need not be shown by direct evidence. The agreement may be inferred from the acts, conduct, and, especially, from the long acquiescence of the parties. But here the evidence all tends to show that no agreement was made between the plaintiff and Dinwiddie with respect to the location of any line between them. There is no evidence to take the case out of the general rule before stated, and none to bring it within the doctrine of agreed boundary lines. The defendants’ instruction should have been refused.

It may be here stated that the instruction given at the instance of the plaintiff is, also, bad. It asserts the proposition that plaintiff would not be bound by an agreement, had one been made and acted upon, because he was not the owner of the land. It may be conceded that an estoppel in pais only operates upon existing rights; but plaintiff had been in the possession of the land for seven or eight years, nnder an agreement for it with his father, and that was a sufficient interest to make such an agreement binding on him. Cases like that of Donaldson v. Hibner, 55 Mo. 492, are unlike this one. There, a party sought to be estopped, by his acts at an execution sale, had no interest in the property, possessory or otherwise.

As this case must go back for re-trial, we may add that there is abundant evidence that the stone on the north end of the hedge, and the one near the south end of the rail fence, spoken of by Dinwiddie and Jacob H. Moseley, are the monuments fixed as the half-section corners, by the government surveyor. If this be true, then these monuments must control, no matter what more recent surveys, by courses and distances, may disclose. So long as the monuments placed upon the earth’s surface by the government surveyors can be identified, or the places where they were planted are known, there are no lost corners. Modern surveys may aid in finding the monuments, but if they can be ascertained, the discrepancies as to distances must yield to the monuments. Knight v. Elliott, 57 Mo. 317.

Though the instructions were erroneous, we might well affirm the judgment, because for the right party, but for the fact that the rail fence appears to be some five feet east of the south corner-stone, and, therefore, not on the line, but on the plaintiff.

The judgment is, therefore, reversed, and the cause remanded.

All concur.