80 Mo. 13 | Mo. | 1883
This is a suit in ejectment to recover the south half of the south half of the southwest quarter of the northwest quarter of section 34, township 50, range 21. The petition is in the usual form. The answer is : 1st, A general denial; 2nd, That when the defendant bought and
It was agreed on the trial that the parties claimed title from a common source, one Asa Einley. Plaintiff' then introduced N. B. Ross, the county surveyor of Saline county, who testified that he surveyed the land for Albert Sims, and said: “ I found no remains or evidence of the northwest corner of section 24, nor any quarter section corner established by the government on the west or east line of the section, nor any center corner to said section 24; most of the government corners on said section were established. I first established a'monument at the northwest corner of said section, by running a line from the southwest corner of section 24, where I found a stone corner, said to have been placed there by Duggins, a former surveyor; two miles north to the northwest corner of section 13, where I found a government corner, said to be placed there for the northwest corner of section 13; then I corrected the line back ; I then commenced at the northwest corner fractional section 23, where I found a stone said to be a government corner and ran east two miles to the northeast corner of section 24 and found government corner, the stump of a bearing tree, and corrected back; I then located the northwest corner of section 24. I had two methods for locating a lost section corner; one was to have placed it at the intersection of the two lines I thus run; and the other is to
Plaintiff then introduced, Thomas Elliott, a former surveyor of Saline county, whose evidence tended to corroborate that of Ross, and other evidence tending to show that the corner fixed by Ross was the correct one.-
Dennis H. Hartsook testified in his own behalf substantially that he bought his land in 1869; that Mrs. Jeffries then lived on the land adjoining him now in controversy ; that there was no division fence between them; that in the spring of 1870 he told her he wished to build a fence, and she sent her son to show him the line, which he did, and where he thus built the fence; that he also showed defend
Defendant introduced Thomas C. Duggins, who testi. fied he was at one time county surveyor of Saline county, and as such had “established the southwest corner of section 13, which is also the northwest corner of section 24, by running a line from the southwest corner of section 24, north to the quarter section corner on the west line of section 13; government corners at both ends of this line being known at that time; corrected back, divided up this line run by me m proper proportions, and set corner to sections 13, 14, 23 and 24.
Plaintiff then offered rebutting evidence, tending to impeach the testimony of the defendant in relation especially to his statement that Mrs. Jeffries’ son had shown him the dividing line.
There was conflicting evidence as to the acts of Mrs.
The court then gave instruction number one for the plaintiff, as follows :
I. Section 24, township 50, range 21, within which the laud in dispute is situated, is a section recognized by law as an interior section, and in such sections the legal rule for establishing lost quarter section corners is to establish the same at a point equi-distant from the corresponding corners of the section; and the true location of the southwest corner of the land claimed by plaintiff is at a point half way between the southwest corner and the northwest corner of said section 24 ; and the true line between the west half of the northwest quarter and the west half of the southwest quarter would be a straight line between said point last mentioned and a point on the east line of said section, equi-distant from or half way between the northeast and southeast corners of said section, provided the quarter section corner on the east line of said section 24, as established by government, is also shown to be lost,
The appellant insists that this instruction ought not to have been given, because it is misleading and erroneous, and there is no evidence upon which to base it. It attempts to lay down the rule by which lost quarter section corners may be established. The evidence at least tends to show that the true location of the southwest corner of the land claimed by plaintiff' is at the place specified in the instruction, and the evidence is sufficient upon which to base it; provided it is the true and legal mode for ascertaining the lost quarter section corners.
The land in controversy is in a section recognized by law as an interior section. The laws of the State, (R. S-, § 7403,) prescribe the mode of ascertaining lost corners, and it is upon this statute the appellant has attempted to base his fourth instruction, and insists the judgment must be
II. The court, of its own motion, gave the following instruction: “If the jury believe that the line between
This instruction, and the first given for the defendant and the second and third asked by the defendant and refused, presented substantially the same questions, for the consideration of the jury; andif found to be true by the jury, as alleged by defendant and presented by the instructions, would result in and amount toan estoppel in pais. But the evidence was conflicting; that on the part of the de
III. It is insisted that the petition is defective and does not state facts sufficient to constitute a cause of action; that the judgment on such petition and writ of possession would not inform the officer executing the writ “ what land it was his duty to put the plaintiff' in possession of.” It will be seen that the plaintiff sues for the south half of the south half of the southwest quarter of the northwest quarter of section 24, township 50, range 21, in Saline county. The judgment was “ that plaintiff recover of defendant the possession of the land in the petition described, to-wit ” — and describing the land in the judgment. The judgment then goes on — “ and that execution issue to restore the possession of said land or so much thereof, not further south than the boundary line in said verdict described, as said defendant shall be found in possession of at the time of the execution of said writ.” The verdict of the jury was as follows: “We, the jury, find for the plaintiff, and designate a line beginning at a point equi-distant between the southwest and northwest corners of section 24, and running east on the line as surveyed and located by Mr. Ross to the corner established by Mr. Ross, as the true line between plaintiff' and defendant, and assess no damage or rental against defendant.” This judgment and verdict are more specific than necessary. The judgment might have stopped
IV. The court did not err in admitting the statement of Mrs. Jeffries in evidence. She was the owner and in jaos-session of the land at the time the declarations were made and has since deceased. 1 Greenleaf Ev., § 109, and authorities cited in note b; also Hunnicutt v. Peyton, 102 U. S. 333; Darrett v. Donnelly, 39 Mo. 493; State to use, etc., v. Schneider, 35 Mo. 533; Burgert v. Borchert, 59 Mo. 80. See note to Deming v. Carrington, 30 Am. Dec. 595; s. c., 12 Conn. 1.
In the state of Massachusetts where this subject has been much discussed, it is held that to be admissible such declarations must be made by persons in the possession of land, and in the act of pointing out their boundaries. Bartlett v. Emerson, 7 Gray 174; Daggett v. Shaw, 5 Metc. 223; Long v. Colton, 116 Mass. 414. The declaration derives its force from the fact that it accompanies and qualifies an act and is thus a part of the act. Bender v. Pitzer, 27 Pa. St. 333. The weight of authority seems to be that in questions of private boundary declarations of particular facts as distinguished from l^utation, are admissible in evidence
The judgment of the court below is affirmed,