99 Mo. 145 | Mo. | 1889
This is an action of ejectment to recover a strip of land eight rods wide, off of the south side of the east half of lot two of the northwest fractional quarter of section 4, etc.
Plaintiff owns the east half of lot two which contains, according to government survey, 43.06 acres. Defendant owns the east half of lot one which contains 40.04 acres. The contest is over the proper location of the boundary line; the plaintiff’s land is on the north, and the defendant’s on the south, of this disputed line. For convenience, each tract will be designated as a forty-acre tract.
It appears a fence had been erected between the two forty-acre tracts as far .back as 1868 or 1869 by one Autery • who owned the south forty. Mr. Moore, who
The case was tried by the court without a jury; ho instructions were asked by the plaintiff. Mr. Youngblood, the county surveyor who made the survey in 1883, attempted to make a record of his survey under the provisions of chapter 158, Revised Statutes, 1879; and he produced in court a copy of this record, which copy was made and certified by himself. On the objection of defendant, the court, by an instruction, excluded this copy because it failed to show that the survey was made in accordance with the requirements of the statute; but the copy was evidently iised by the surveyor as a memorandum to refresh his memory in giving his evidence as to how he made the survey and where he found the line. The record could have been used for such’a purpose; and since there was no objection to the copy, because it was a copy and not the original, there was no error in allowing it to remain in evidence for that purpose.
It was properly refused for another reason. It simply says: “that on the evidence in this case, the statute of limitations is a bar to this suit.” While this court may determine whether there is any evidence to support a given theory, still where there is such evidence it has no more power to review the finding of facts made by the court in actions at law, than it has to review the finding of facts made by a jury in like cases. Whether a case at law is tried by the court alone, or
There is no evidence in the case showing or tending to show that, prior to the survey made in 1888, there-was ever any agreement between the adjacent owners as-to what should be deemed and taken as the true line. Those prior owners were in doubt as to where the true line was, and they left its location to be fixed by a subsequent survey. The matter stood in this way when defendant purchased.
The plaintiff is manifestly the owner of the land for which he sued and recovered a judgment, and that-judgment is now affirmed.