Rosenberger v. Wabash Railroad

96 Mo. App. 504 | Mo. Ct. App. | 1902

BARCLAY, J.

This is a statutory action of unlawful detainer begun by plaintiff before a justice of the peace in Montgomery county,'Missouri, to recover possession of a strip of land near the main line of the defendant’s railway track in that county. The piece of land whose possession is in controversy is within the limits of a strip 150 feet wide, duly conveyed to the North Missouri Railroad Company for railroad purposes by John F. Diggs and wife, in 1856. The railroad now operated by defendant was 'constructed shortly afterwards across the aforesaid strip, and a fence was erected which ran parallel with the track and fifty-eight feet from the center thereof, along the land to which this action refers. Plaintiff’s testimony tended to show his possession of the land to the fence, at the time when he charges the unlawful entry occurred. Plaintiff had the land in cultivation in conjunction with adjacent land occupied by him. In 1900 the defendant moved the fence southward about twenty-six feet to what defendant claimed to be the true line of its ownership, under the Diggs deed. That move was unaccompanied by any other ceremony, and it forms the gist of plaintiff’s present complaint.

After giving notice to defendant demanding possession of the land in question,, plaintiff brought this action, June 30, 1900. There was a judgment before the justice for possession and one dollar damages. Defendant appealed and a new trial was had before Judge Hughes, a jury having been waived, in. the circuit court of the same county. Again a finding and judgment for plaintiff for possession resulted. The rents and profits were adjudged to be one cent. Defendant appealed after the ordinary preliminaries.

1. Defendant' complains because the trial court allowed plaintiff, at the hearing in the circuit court, to amend his complaint by changing the word “north” to “south” in describing the quarter section where the land is situated. The entire description as originally recited in the complaint is as follows:

“Part of the E. ½ of N. W. ¼ S. 32, T. 47, R. 4, bounded as follows: Commencing at the west side of the public road and at the place where the defendant, the Wabash Railroad Company, tore away the fence in 1898, running west along the old fence site to the corner of the tract of land sold by John F. Diggs to the North Missouri Railroad Company, thence south fifty feet more or less to the fence erected by Wabash Railroad Company in 1899, thence east along said fence to the east end of said fence, thence north fifty feet more or less to the place of beginning. ’ ’

The amendment was made in the first line by inserting an “S” instead of the “N” which there appeared. No othei change was made. It will be seen by examining the entire description that the precise tract of land to which plaintiff seeks to assert his right of possession by this summary action is marked by accurate metes and bounds, while the error of locating that tract in a wrong quarter section is so obvious as scarcely to require amendment.

It is a general rule for the construction of papers, exhibiting descriptions of property, that words of particular specification prevail over more general language. Grandy v. Casey, 93 Mo. 595; 4 Am. and Eng. Ency. Law (2 Ed.), 799. But that rule is not of invariable application, for the chief purpose of construction is to develop the true intent of the language, and that intent should always be given paramount force when it has been discovered. Rutherford v. Tracey, 48 Mo. 325; Cooley v. Warren, 53 Mo. 166.

In reaching the true intent of a written description of property, one venerable maxim should not be overlooked, namely, that a false description is harmless where the real thing is evident. That maxim was utilized even by the ancients. Sandars, Justinian, Insts., lib. 2, 20, 30. It has been often sanctioned and applied in English decisions and in those of our own State. Broom, Maxims (7 Am. Ed.), 629; Adler v. Railway, 92 Mo. 249; West v. Bretelle, 115 Mo. 653; Mitchner v. Holmes, 117 Mo. 208.

In Evans v. Greene, 21 Mo. 170, it was held that where the word “west” had been erroneously used instead of the word “east,” as part of a description in a deed, but the other items of identification clearly disclosed the intent of the language, the false element of the description would be disregarded; and in Fenwick v. Gill, 38 Mo. 510, the court rejected an error in the descriptive ^number of a township where the land was otherwise described with certainty.

Guided by tbe principles of construction expressed in the foregoing decisions, we bold that there was no error in tbe ruling of tbe trial court permitting tbe amendment of tbe complaint in the present case, inasmuch as tbe land whose possession was in dispute was sufficiently identified by tbe other language in tbe plaintiff’s pleading.

2. Tbe undisputed facts of tbe case are that plaintiff bad been for some years in possession of tbe land in question, and bad it under cultivation as part of bis farm, up to tbe line of tbe fence which separated tbe farm from tbe strip of land appurtenant to tbe defendant’s railway track. While plaintiff thus bad possession (as found by tbe trial court) defendant entered and removed its fence southward, so as to take possession of that part of tbe field which forms tbe subject of this action. That entry was effected without tbe consent of plaintiff, and tbe retention of possession so obtained constituted an unlawful detainer within the meaning of section 3321 (R. S. 1899) after proper demand. Tbe defendant claims that it owns tbe property in question by virtue of tbe original conveyance of tbe right of way by Mr. Diggs and wife. But that issue does not concern us at present. However valid defendant’s claim of title may be to tbe property, it is not permissible to assert it in tbe manner shown to have been adopted in tbe case at bar. One of tbe express mandates of our written law is as follows:

“No person shall enter upon or into any lands, tenements or other possessions, and detain and bold tbe same, but when entry is given by law, and then only in a peaceable manner.” R. S. 1899, sec. 3319.

If plaintiff’s possession as against defendant was unlawful because without right, defendant bad ample legal remedy to assert its paramount title; but not by invading tbe peaceful possession of plaintiff exhibited by this record. Tbe statutory action now before us is not designed to try title to land but merely to maintain tbe sanctity of a peaceful possession against all in-traders thereon. Dennison v. Smith, 26 Mo. 487; Beeler v. Cardwell, 33 Mo. 84.

There was evidence to support the finding of the learned trial judge in regard to plaintiff’s possession and defendant’s unlawful invasion thereof and detention of the premises from the plaintiff.

3. Defendant contends that possession of the entire strip conveyed by Mr. Diggs and his wife to the North Missouri Railroad Company in 1856 belongs to its ownership of the railway which defendant operated as successor to that company, on part of that strip at tin time of the alleged unlawful detainer. But whatever its right to possession may be in that regard, the plaintiff had meanwhile come peaceably into actual possession of the piece of land now in controversy, and defendant could not disturb that actual possession as it did. The case of Hargis v. Railway, 100 Mo. 210, does not support defendant’s contention on this branch of the case. That was an action of ejectment. The right of possession was involved; but the decision does not bear on any such issue of -an unlawful invasion of possession as is presented by the facts of the case at bar.

4. Whether or not plaintiff has acquired title as against defendant by adverse possession of the described land is not a material inquiry in this action. He had actual, peaceful possession as the trial court found, and that was enough for his purposes as plaintiff in the case.

5. Assuming that written demand of possession was necessary, under section 3321 (E. S. 1899) the demand shown in the evidence was sufficient. No suggestion of its insufficiency is made except that implied by the want of conformity of its terms to the original description in the complaint before the amendment thereof. But we have held that the description was good without the amendment for the reasons already given in this opinion; No amendment of the notice was necessary to make it sufficient in that particular. It was not challenged in any other respect at the trial.

The defendant at the close of the evidence offered a peremptory instruction to find in its favor. The court refused it, and found for the plaintiff. There was testimony to sustain that finding on applying the principles of law we have discussed. We find none of the assignments of error well taken.

The judgment is affirmed.

Bland, P. J., and Goode, J., concur.