136 Mo. App. 106 | Mo. Ct. App. | 1909
Action under section 3321, Revised Statutes 1899, for unlawful detainer of a strip of ground within the limits of the city of Sikeston, in Scott county. As described in the petition filed with the justice and on which the case was tried in the circuit court, the parcel is 12.75 feet along the south line of Front street, then 120.67 feet along the west line of King street to the intersection of the west line of King-street with the north line of the right of way of the Iron Mountain Railway, then along the right of way seven-hundredths of a foot to the southeast corner of block 7, in Sikeston, and thence along the east line of block 7, one hundred and twenty .feet to the place of beginning. This description shows practically a triangular piece, the base being 12.75 feet, one side 120.67, the other 120 feet, and the lower end, seven-hundredths of a foot, being practically a point about seven-eights of an inch. The location will be better understood by reference to part of the plat of Sikeston which is reproduced in the
It is described in the petition as being a part of United States survey No. 625, and it might be inferred from the description in the petition that it is not within the limits of the city of Sikeston, which gives rise to some question as to whether it is within the jurisdiction of the justice of the peace, but as no suggestion of that
The facts developed on the trial are substantially these: What is claimed to be this strip of ground in controversy lies to the east of the lots in block 7, in the city of Sikeston; in the plat above copied, it is the piece colored black, adjacent to the lots in block 7. These lots are not numbered on the plat used, so that we cannot say whether lots 2 and 3, which defendant claims to occupy, are the two south or two north lots in the block. The city of Sikeston was laid off and platted by John Sikes, in 1860, Sikes then being the owner of United States survey No. 625, the townsite being platted as within that survey. There seems to have been some change or correction of the lines of the original town when the city of Sikeston was organized and the city authorities of the new town appear to hare adopted and approved a plat of the city with its new boundaries. The plat furnished us by counsel for respondent, however, shows that the strip in controversy is within the limits of the city of Sikeston, and all the testimony in the case bounds it on the north by Front street and on the east by King’s highway (also a street in that city) and there is no suggestion that it was not within the
These lots, as shown in the plat, have a front of forty feet and a depth of one hundred and twenty feet. The defendant claims, however, that the description in his
This case, therefore, presenting the fact of a mere survey, unaccompanied by any acts indicating that it had been made, is in no manner parallel to any of these cases. For anything that appears to the contrary, young Sikes and the surveyor may have gone on the land at night. They left no indicia of their survey, established no corners, set up no marks and left no trace whatever of their presence. For all that appears, their going on and surveying were the acts of casual trespassers. That was not a visible act of possession, was not an act which would have notified defendant, or any one else, that his possession,- if he had it, was being interrupted and interfered with.
The testimony of Need Sikes and others, that his mother claimed this strip by virtue of her ownership of United States survey No. 625, and that it was a part of that survey, and always considered her property, is without probative value on the fact of possession. In the first place, the claim that it was a part of survey 625 cannot stand. When John Sikes, in 1860, laid off and platted the town of Sikeston, he separated all the land within the boundaries of the town from the survey and it thereafter became or belonged to Sikes, not as a part of survey No. 625, but as a part of his property within the boundaries of the new town of Sikeston, and if this particular strip remained unsold and undisposed of from the time of the platting of that town down to the selling of the strip to Dr. Milem, the plaintiff in the case, it belonged to the Sikes estate, not as part of the survey but as part of the town, so that the claim of ownership by virtue of being owner of survey 625 is untenable.. In the next place, the mere statement of witnesses that Mrs. Handy, or Mrs. Sikes, was recognized as the owner and considered the owner and consider
The only act of possession claimed to have been exercised by the. plaintiff himself, after he purchased the lot from Mrs. Handy, is that he caused a couple of loads of dirt to be dumped upon the land some time in December, 1906. The plaintiff testifies that he did this the day the defendant moved his chickenhouse around on to the strip and after he had seen him doing that, and he said that this was all the work he had ever done on the strip. The point of this reference to the act of moving this chickenhouse is, that it appears that when the question came up as to the right to this strip, and the attention of the defendant was called to the fact that the plaintiff claimed it, but before these loads of dirt were dumped, as plaintiff himself admits, defendant ran a wire fence around it, a fence made out of ordinary netting wire, such as is ordinarily used for inclosing chicken yards and the like, of course a mere temporary structure, evidently put up for the express purpose of making defendant’s claim of possession, and also moved or turned on to the strip a chickenhouse which was on or adjoining what is claimed as the west line of this strip, so that the taking possession of this strip by the plaintiff, evidenced by dumping the two or three loads of dirt was after the controversy had arisen and after
The judgment of the circuit court of Scott county is reversed.