45 Mo. 384 | Mo. | 1870
delivered the opinion of the court.
The controversy in this case pertains to a disputed boundary, and plaintiffs bring ejectment to recover possession of a portion of the land of the wife, claimed to be fenced in by the defendant. The title of the plaintiffs to the forty acres, of which it is claimed the disputed parcel is a part, is admitted to be in Mrs. Thomas, and the title to the farm within which the disputed land is inclosed: is admitted to be in Mrs. Babb ; and it is also admitted that she' and her husband had been in possession of the same for more .than ten years before the commencement of the suit. The plaintiff employed the county surveyor to locate the land, and, unable-to find the original monuments indicating the boundaries of section 5, in which the disputed land lies, he runs lines from known, monuments in the north line of the township, five miles southi to other monuments, and finds a surplus of some thirteen and: a half chains; This surplus he divides among the several sections, which has the effect of making the south line of section.-5 over two chains more than a mile from the north line. This-adjustment of the lines of the sections and of their subdivisions, throws the division line between plaintiff's and defendants some-eight rods south of the division fence. Several questions were-raised at the trial by the rejection of evidence offered by defendants, and by refusing instructions asked for by them, which, inasmuch as they obtained judgment, it is unnecessary to consider.. But the'court, at their instance, gave instruction No. 9, to which.-
The defendant, Joseph Babb, who was supported by other witnesses, had testified that in 1857 he pre-empted the land now owned by his wife; that he hauled lumber upon what he supposed was the north end of the lot, in order to make improvements ; that Robert McCullough, under whom the plaintiffs claim, came to where he Avas hauling it; that he had stepped off the distance from the north, and told Babb he was too far north; that he then stepped on some two hundred steps further south, stuck a stick in the ground and said, “If you build south of here, you will be forever safe.” Babb then moved his lumber further south and built his house; he also built his fence upon the line as indicated by the stick, and has ever since occupied up to the fence. McCullough differed somewhat in his description of the occurrence ; but there is no dispute that defendants have ever since occupied the land up to the fence, and made improvements upon the part now claimed by the plaintiffs. The instruction above recited was given in reference to this testimony.
The instruction is erroneous. It hypothecates a state of facts, and upon their existence directs a verdict for defendants. An instruction in this form is proper, provided all the facts are
The defendants claim, however, that the defects of this instruction are supplied by other instructions given on behalf of the plaintiffs. It is true that those asked for by the plaintiffs were
If it should appear upon another trial of this case that there was an actual mistake in the boundaries, as claimed by the plaintiffs, and that defendants have not acquired title by possession, it does not necessarily follow that they have no rights in the premises. There is testimony tending to prove license, if nothing-more, in which case the defendants would not be liable to the same measure of damages or deprived of the benefit of their improvements, as if their possession had been wrongful. (See Fahr v. Dean, 26 Mo. 116.)
The other judges concurring, the judgment is reversed and the cause remanded.