Mississippi County v. Vowels

Apr 15, 1890

Versions:101 Mo. 225

Brace, J.

This is an action in ejectment'instituted in December, 1883, to recover thе west half of the northwest quarter of section 16, township 26, range 17; in Mississippi county. The facts are undisputed.' The tract was a part of the school lands of said county. The defendant is the widow of Henry Yowеls who died in 1867. In the early part of the year 1864, Henry Yowels moved upon this tract, which was timber land and in a state of nature, built a house, clеared and inclosed all ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of it, that was susceptible of cultivatiоn, about sixty acres, and with his family continued from that date to reside upon and cultivate the inclosed land, using the uninclosed woods land in сonnection therewith for rails and wood, up to the time of his death, and since his death his widow, the plaintiff, and her minor children have cоntinued to so reside upon, use and occupy said land uninterruptedly until this suit was brought. Yowels in his lifetime claimed to have *228bought the land from onе. Donnelly or his heirs. The land before being improved was worth four or fivе dollars per acre. The value of the improvements put upon it by Vowels was about one thousand dollars. At the time of his death it wаs worth less than fifteen hundred ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dollars. At the close of the evidencе the court instructed the jury that under the pleadings and evidence the plaintiff could not recover, whereupon the plaintiff took a nonsuit, and the court afterwards refusing to set the nonsuit aside, the plaintiff appealed.

I. There was no error in the admission of the declaration of Vowels, deceased, that he had purсhased the land. “The tendency of recent adjudications is to аdmit explanations of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a possessor of property as to his title, not with a view to set up such title, but to show whether his possession was adverse under the statute of limitations or otherwise.” Martin v. Bonsack, 61 Mo. 556.

II. The entry of Vowels was made under the statute of 1847 (2 R. S. 1855, chap. 103, art. 1), and it has been rеpeatedly held that that statute runs against the legal title of the stаte, a county and a municipality ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to lands held for public use, and that the statute of 1865 ( R. S. 1879, sec. 3227) is prospective in its operation and does not apply to cases where the right of entry acсrued before it was enacted. County of St. Charles v. Powell, 22 Mo. 525; Callaway County v. Nolley, 31 Mo. 393 ; Abernathy v. Dennis, 49 Mo. 468; School Directors v. Georges, 50 Mo. 194; McCartney, Adm'x, v. Alderson, 54 Mo. 320; Wichersham v. Woodbeck, 57 Mo. 59 ; Conn. Mut. Life Ins. Co. v. St. Louis, 98 Mo. 422.

III. For a period much longer thаn required to confer title under the statute of limitations, before this suit'wаs brought, Vowels and his family were in the peaceable, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍open, notorious, continuous, exclusive, adverse possession of the premises, residing upon it, cultivating the sixty acres that were inclosеd, and using *229the remaining outlying woods land not susceptible ■ of cultivation in сonnection with the inclosed land as a homestead, making just such usе of it, as it was adapted to and as was necessary, usual and customary to owners, of homesteads, who like him had no other land. Such use constituted an occupation of the tract of land, as a whole, and we do not think the court erred in holding that the defendant’s claim ought not to be restricted to the land actually inclosed with a fence. “A fence, building or other improvement is not essentiаl to constitute adverse possession.” Leeper v. Baker, 68 Mo. 400, and cases cited. The use made, of the outlying woods land in this case was such a necеssary adjunct to the enjoyment of the inclosed land, and was necessarily so continuous and incessant, as that it may be said to have been actually occupied in as full a sense as was the inclosed land. The judgment of the circuit court is affirmed.

All concur.