121 Mo. 482 | Mo. | 1894
This is an action of ejectment for a narrow and irregular strip of land, varying from twenty to fifty feet in width, and aggregating about one-half of an acre. The dispute originated between two adjoining proprietors, the plaintiff and William
Grordon purchased of Woods his twenty acre tract near the Junction station on the Wabash line neat' Bichmond, Missouri. His tract was covered with timber when he purchased it, and he built his house, and year by year, cleared it. There was ample testimony showing that Mr. Woods showed him the lines in the road, and that he built his fences with reference-to that line and for twenty-two years claimed up to it. He set apart a small tract in one corner of his twenty-acres for his burial ground, and in it his two wives were buried. This burial ground falls partly within the strip claimed by plaintiff. The jury found for the-defendant and plaintiff appeals.
Plaintiff deduced a perfect paper title to his forty acres, and a recent survey indicated that Gordon had put a part of his fence over the line of this forty along-the road between the tracts. On the other hand,, defendant’s title to his twenty acres was not questioned.
Defendant asserted title to the strip in suit by adverse possession. Plaintiff assigns as error the following instruction, given by the court of its own motion:
“3. On the question of adverse possession, the court instructs the jury that, if the defendant William Gordon, Sr., held the actual, open, notorious and con-, tinuous possession of the strip of land in controversy, claiming it as his own, and with no intention of yielding it up in case it was found on a correct survey that, the true south boundary line of this tract of land ran north of the strip in controversy, then his possession of said strip of land was adverse, but if it was his-intention to hold said strip only in the event that on a correct survey it was a part of the tract of land bought by him, and if not, then to conform to the correct line, in such case his possession was not adverse.”
II. The other assignments of error could not have materially affected the issue. The order of the county ■court opening the road would not have strengthened plaintiff’s case. He says himself that he permitted the road to be opened on his land and remain on it for •fifteen years because he supposed it was on the line. The order could not have affected the question at issue one way or the other. Neither would his tax receipts. It was conceded he had title to his forty, and was paying taxes on it, and he had, also, the full benefit of showing that defendant did not pay taxes on any part of plaintiff’s forty.
The sole question at issue was the character of the adverse possession of defendant and this was one of fact, submitted under a clear and correct instruction to •the jury, and they found against plaintiff. The judgment is affirmed.