Minor v. Burton

228 Mo. 558 | Mo. | 1910

GRAVES, J.

This action involves a small tract of land in Randolph county. The quantity involved is about two acres and in that portion of the south one-half of the northwest one-fourth of section ten, township fifty-three, range fifteen west, lying north of Sweet Spring Creek. The petition is in three counts. Count one is the ordinary pleading under section 650. Count two is an action for trespass, in which the damages are alleged to be one hundred dollars for cutting timber from said land, and fifty dollars for the cultivation of.a part thereof for the years 1905 and 1906, or a total of one hundred and fifty dollars. The third count, which is denominated in the petition as a “further cause of action, and as auxiliary to the foregoing, ’ ’ is one praying for injunctive relief. Under this count a temporary injunction was granted.

The answer was first a general denial, to which was coupled a plea invoking the Statute of Limitations. In this portion of the answer it is averred that in 1865 one Samuel Minor owned the eighty acres of land described in plaintiff’s petition, and Samuel Burton (father of defendant) owned the eighty acres adjoining on the north; that Sweet Spring Creek ran through both eighties, so as to throw a part of the Burton eighty south of the creek and a part of the Minor eighty north of the creek; that the said Minor, and Burton in 1865> in order to have their respective lands contiguous and all on one side of said creek, agreed to exchange the portions cut off by the creek as aforesaid, and to that end made and exchanged deeds conveying the same, one to the other; that the defendant and his grantees have been in the open and adverse possession thereof from that date to the time of the suit.

The reply denied the new matter in the answer and averred that plaintiff and his grantors had been in the open and adverse possession thereof since 1863.

A jury was waived, as shown by the record, and the cause tried before a special judge. The court found for defendant on each count of the petition, and decreed title in defendant under the first count. The temporary injunction was dissolved. After proper steps plaintiff has appealed. Points made and the necessary portions of the testimony will he noted in the opinion.

I. Valuable in the disposition of this case is the fixing of the character of the suit. The first count of the petition is one under section 650. To this count, the answer pleaded the Statute of Limitations. The issue thus made is one at law and not in equity. On this issue either party was entitled to a jury. It was for a time a mooted question as to whether or not an action under section 650 was an action in equity or at law, but we finally determined the question in the recent case of Lee v. Conran, 213 Mo. 404. In that case we concluded that the character of the suit was dependent upon the issues raised by the pleadings. If the issues thus raised are such as, at the adoption of. our Constitution, were triable before a jury, then the parties in an action under section 650 are entitled to a jury, but if the issiies raised by the pleadings .were not triable before a jury prior to the adoption of the Constitution then the parties are not entitled to a jury. The action given by section 650 is statutory, and we think the construction given in the Lee case, supra, is a reasonable one.

Reverting now to the case at bar there was no issue made by the pleadings under the first count which were not triable by a jury. The second count is one for damages alleged to have grown out of a trespass, which is a pure action at law. Thus far, the whole case is one triable by a jury, had one been demanded. The parties evidently so understood the law for the record recites that they waived a jury.

The third count, whilst equitable in character, is only incidental and auxiliary to the other counts. It is not only actually incidental and auxiliary to the other counts, but it is so alleged to be by the plaintiff. But if it were not so alleged to be, an examination of the pleadings would so show, It ig wholly dependent upon the findings and judgment under the first count. We conclude therefore that the real issues in this case were issues at law, and this will materially assist in the disposition of the only real question, which we take next.

II. In the court below, the battle was waged upon the issue of adverse possession for the statutory period. Plaintiff exhibited a paper title. Defendant made no attempt to show a paper title, but relied upon a title by adverse possession. Upon this question there was a conflict between the evidence offered by plaintiff and defendant. For the defendant there was substantial evidence of continuous adverse possession, with claim of title, of this small tract of land from the year 1865 or 1866. This was shown, not only by numerous acts of ownership, but by the a.ctual fencing of the strip of land by a fence running along the bank of the creek. The finding of the judge, sitting as a jury, upon this issue was for the defendant, and we are asked to reverse the finding of fact, nisi.

A finding of a fact in a law case made by the court sitting as a jury is the same in appellate practice as the verdict of a jury. Such finding will not be disturbed upon appeal, if supported by substantial evidence. [Vincent v. Means, 207 Mo. l. c. 713; Glade v. Ford, 131 Mo. App. l. c. 169.]

In the Vincent case, we said: “As the cause was tried by the court, a jury being waived, the same presumption is to be indulged in favor of the correctness of the finding as the verdict of a jury, and it will not be interfered with by the Supreme Court unless there be an absence of substantial evidence to sustain such finding. [Irwin v. Woodmansee, 104 Mo. 403; Godman v. Simmons, 113 Mo. 122; Gould v. Smith, 48 Mo. 43; Gaines v. Fender, 82 Mo. 497.] ’ ’

So in this case, there’ being direct and positive evidence tending to show adverse possession, we will not undertake to review and weigh the evidence upon •which the trial judge bases his finding, that there had been adverse possession for snch length of time as to ripen into an absolute title.

III. Point is made that there was error in refusing to permit a witness, John H. Minor, to testify to statements made by Samuel Burton, a former owner of defendant’s land, as to the nature of his claim to this small strip. There can be no question that the statements of one in possession as to the character and manner of his possession are proper. [Brown v. Patterson, 224 Mo. 639.]

The error complained of is predicated upon the following in the record:

“ ‘Q. • State if you know, what, if any, fence and where it was built, on the line between you and Mr. Burton, between this forty and the forty immediately north across this strip of land here in controversy. A. When he moved down there he cleaned it up and his fence come around and took in one-half acre and he didn’t know where the line was then and I didn’t either, and afterwards we come to find where the line was and I said, you can just leave it. ’

“Here counsel for defendant objected to what the witness and Sam Burton said for the reason that—

“Which said objection was by the court sustained and to the action of the court in sustaining the said objection, the plaintiff, by his counsel then and there at the time, duly excepted and saved his exceptions. ... ‘ Q. State if you know, how it was that Mr. Sam Burton cleared up and put in cultivation a small portion of this strip, of land in controversy? A. He said — ’

“Counsel for defendant here objected to what he said for the reason that . . .

“ (No ruling by the court). ■

“ ‘Q. Answer that question, if you know. A. I answer that it was through a mistake.’ ”

Taking the first excerpt from the record it will he seen that the question propounded does not call for any statements made by Samuel Burton as to how he held the possession of this strip of land. Nor does the answer to the question undertake to give what Burton said. What is said of the first excerpt applies to the second excerpt. If counsel desired to show what the elder Burton said as to the character of his possession, the question should have been so directed.

Other assignments of error are not of sufficient importance to require notice. Upon the record the judgment should be affirmed and it is so ordered.

All concur.