154 S.W.2d 104 | Mo. | 1941
This was an action to determine the title to a strip of land about 20 feet wide, as a part of the SE¼ of the NE¼ of Sec. 1, Twp. 41, Rg. 26, in Henry County. It was a boundary line dispute, tried in Pettis County on change of venue. The plaintiff-respondent claimed title under the ten-year Statute of Limitations, Sec. 1002, R.S. 1939, Sec. 850, Mo. Stat. Ann., p. 1121. She did not concede that appellants had the better record title before the statute ran — for she claimed (but did not prove) the strip was a part of the land covered by her muniments of title. But she asserted her adverse possession established her title to the strip whether or not it was a part of the forty-acre tract admittedly owned by her. The defendant-appellant stood on a demurrer to respondent's evidence. The finding and judgment were for respondent. There are only two assignments of error: (1) that respondent failed to make a prima facie case; (2) that the description of the land in the evidence and judgment is so vague that the judgment cannot be enforced and no valid judgment can be entered.
We have just stated the respondent's claim was based on the ten-year Statute of Limitations. This is obvious although respondent's petition alleged she owned, and that she and her predecessors in title had been in open, notorious, exclusive and adverse possession of, said SE¼ including said twenty-foot strip up to a certain boundary line fence, for more than thirty years next [106] prior to the institution of her suit. Her claim cannot be based on the thirty-one-year Statute of Limitations, Sec. 1008, R.S. 1939, Sec. 856, Mo. Stat. Ann., p. 1131, because there is neither pleading nor proof as to when the equitable *477 title emanated from the Government, or about the payment of taxes. The petition further alleged that said fence — between said SE¼ and SW¼ of said quarter section — had been for more than thirty years recognized and used as the boundary line between the two forty-acre tracts.
Neither the respondent nor any of the former owners of either of the two tracts testified at the trial. But it was stipulated that respondent had record title to the SE¼ and appellant to the SW¼. And respondent proved by two old residents of the neighborhood that the successive owners of each tract had occupied, used and farmed the same up to the aforesaid fence as a boundary line for fifty years. Another witness said for twenty-eight years to his knowledge. Other than this there was no evidence as to the animus possidendi. Appellant, by deposition introduced by respondent, testified that he purchased the SW¼ and was informed by his vendor that the fence was not on the true line. He had a survey made and pursuant thereto erected a new fence about twenty feet over on the land occupied by respondent. This was in October, 1936, according to respondent's petition, though there was no proof of the date. However it evidently was shortly before respondent filed her suit, and no point is made on that. Appellant's chief contention is that the foregoing was insufficient to show the possession of respondent and her predecessors in title was adverse.
Together the litigants cite nearly fifty cases, many of which are on collateral questions such as that: the burden of proof was on the plaintiff to adduce substantial evidence showing not only possession in her and her predecessors in title, but also that the possession was actual, open, notorious, exclusive and continuous under hostile claim of ownership; and that possession under a claim of ownership up to the old fence contingent on whether it proved to be the true line, was not adverse possession. These propositions will be conceded. [See discussion in Bell v. Barrett (Mo. Div. 1), 76 S.W.2d 394.] We shall limit ourselves to the single question whether the admitted, exclusive and continuous occupancy and use of the twenty-foot strip by respondent and her predecessors in title, as a part of the SE¼ — to which she concededly had title — for a period of fifty years, was sufficient evidence standing alone to make a prima facie case of adverse possession under Sec. 1002, supra.
[1] Actuality of possession, and the intent with which dominion over land is exercised, may be shown by an almost endless combination of circumstances. [2 C.J., sec. 6, p. 54.] Ordinarily each case must be ruled on its own facts, and there is some apparent discord in our precedents. But a number of decisions discuss the abstract proposition presented here. To begin with, the general doctrine is stated in 9 C.J., sec. 199, p. 246, that long acquiescence in a fence as a boundary line will warrant a presumption that it is the true line. In an *478
early case, Blair v. Smith,
Another early case, Lindell v. McLaughlin,
Brummell v. Harris,
The law does not prescribe what the duration of the period of acquiescence shall be, other than that it be long enough to evidence mutual acceptance of the dividing line by the abutting and occupying owners as the common boundary of their respective lands; and this will depend on the circumstances of the case. An oft quoted expression from Blair v. Smith, supra, 16 Mo. l.c. 281, declares the occupancy is evidential if it be "not for twenty years, not for fifteen years, but for a length of time sufficient to show the understanding and the intention of themselves — to show that they know their own boundary, that they are content with their own boundary." In that case the period was the "greater part of twenty years." In Turner v. Baker, supra, 64 Mo. l.c. 242, it was about seventeen years, and in Diers v. Peterson, supra, 290 Mo. l.c. 256, 234 S.W. l.c. 793(2) over fifteen years.
[2] This raises another question which we do not find much discussed in our cases: can the period of acquiescence required to establish an agreed boundary line be tacked onto the period ofadverse possession prescribed by Sec. 1002; or more accurately, can the two run concurrently? The decisions heretofore cited seem to treat the whole period of occupancy as bringing the case within the statute. And Lindell v. McLaughlin, supra, 30 Mo. l.c. 33, reviewing the development of the doctrine in New York, says the view finally taken there was "that the length of time during which the acquiescence must continue ought to be such as would bar a right of entry under the statute of limitations" — thus indicating the two periods do run concurrently. Also this statement is made in 9 C.J., sec. 197, p. 245: "According to a number of decisions, although the presumption in favor of a boundary line acquiesced in by adjoining proprietors is strengthened by lapse of time, there is no period short of that prescribed by the statute of limitations for acquiring title by adverse possession which will render the presumptionconclusive." (Italics ours.) But others of our cases say "claim of title . . . by virtue of an agreed line is one thing, and the claim by adverse possession is another." [Barnes v. Allison, supra, 166 Mo. l.c. 103, 65 S.W. l.c. 783; Martin v. Hays, supra, 228 S.W. l.c. 744.]
The latter statement seems to us to be correct, especially in a case such as this, where the respondent's asserted title is not based on an agreement, as such, but on a possession which is rendered adverse by the agreement. If there be evidence of anexpress agreement establishing a common boundary line, of course the possession of each owner thenceforward becomes adverse. [2 C.J., sec. 236, p. 137; 2 C.J.S., sec. 82, p. 628.] And if that possession be continued for the ten-year period of the Statute of Limitations, it ripens into a title. *480 But here there was no such evidence. To characterize respondent's possession as adverse when the Statute of Limitations began to run, she was required to prove the fence had then become[108] established as the agreed boundary line by long acquiescence theretofore.
A contrary view could only be based on the theory that when the period of acquiescence has elapsed it operates retrospectively as of its own beginning date, thus allowing the two periods to run concurrently. But this would result in the owner's acquiring title by limitation although his claim of ownership was not rendered adverse by the running of the period of acquiescence, until the period of limitation had also run. If the two can run together, it amounts to saying ten years' undisputed possession and use alone satisfies the statute, which is not the law of this State. We think the period of acquiescence and the period of limitation ran consecutively, not concurrently.
[3] But since both parties enjoyed unchallenged possession and use up to the fence for fifty years, respondent amply made a prima facie case. The first forty years, or less, of acquiescence established the fence as an agreed boundary line, and thereby made the last ten years possession adverse. This is true if we can thus divide the fifty-year period into those parts. It was held in Hunnewell v. Adams,
Nevertheless, we think the Hunnewell case is not contrary to our holding here. For not long afterward another decision, Mo. Lbr. Mining Co. v. Jewell,
[4] Several cases cited by appellant should be noticed. In Courtner v. Putnam,
Another case, Owens v. Thomas,
This doctrine is contrary to a long line of holdings on the questions, and both the Owens and Corrigan cases should be overruled on that point. If the above language means the owners only claimed to [109] the fence provided it was on the true line, their possession was not hostile as the italicized language in the latter part of the quotation hypothesizes. On the other hand, if either owner claimed to the fence unconditionally his possession was adverse, regardless of his reason, so long as it was actual, open, notorious, exclusive, continuous and under hostile claim of ownership — not necessarily claim of right
in the sense of moral right, or even prior legal right. In fact the term "adverse possession" implies a commencement in wrong
against right by ouster. [Swope v. Ward,
The case to which the above Corrigan decision attributes its doctrine is Davis v. Braswell,
[5] Since respondent made a prima facie case of adverse possession, the burden of evidence (not the burden of proof on the whole case) shifted to appellants to disprove it by showing her possession was not adverse — as, for instance, that she did not rely on long possession and an agreed boundary line, but had claimed to the fence on condition that it was the true line. Appellants concede that here, but they stood on a demurrer to respondent's evidence at the trial, and the court decided against them. This was a law case. The respondent's petition in part followed Sec. 1684, R.S. 1939, Sec. 1520, Mo. Stat. Ann., p. 1682, and also incorporated allegations of adverse possession. But no issues of equitable cognizance were included either in it or the answer. [See Ebbs v. Neff,
[6] But the question remains whether the description of the land in the evidence and judgment is so vague that no valid judgment can be entered, and the judgment rendered is unenforceable. Respondent's petition below claimed ownership of the SE¼ of the NE¼ of said Sec. 1, "and extending west up to a certain partition fence," theretofore used as a division fence between "said tract" and the SW¼ of the same quarter section. It did not locate the old fence *483 with reference to any Government survey or established monument. It further alleged the new fence erected by appellants was about thirty-five feet east of the old fence, and claimed the strip of land between the two. Only one witness testified to the location of the new fence. He said he had seen it and estimated it was "about 21 feet east of the old fence" at the north end, "but maybe not that far" at the south end. A lead pencil diagram of the two tracts was then exhibited to and identified by the witness, but it gave no courses, distances, government monuments or lines. The judgment described the land as follows:
"A tract of land known and described as the Southeast Quarter of the Northeast Quarter of Section 1, Township 41, Range 26, (in Henry County, Missouri) and extending west up to a certain partition fence heretofore existing and dividing the lands used by the plaintiff under her ownership of [110] said tract, and by her predecessors in title to said tract, as the partition fence between said tract and the Southwest Quarter of the said Northeast Quarter, and particularly of a strip of land between said old fence and a certain new fence erected by the said defendants on or about the __ day of October, 1936, east of said old fence;"
Since the location of the east boundary line of the SE¼ of the quarter section was questioned and not proven; and this description did not locate the new fence and the old fence with reference to each other, or to any Government survey or natural monuments, the judgment was too vague to locate the land in dispute. If the old fence was not removed after the new one was built, one could go on the ground and find it. But even so, if it is not tied in with recognized monuments, the rights of the parties will still rest partly in parol; and unless the land in dispute can be located from the written description in the judgment, the law suit has been in vain and settles nothing except that respondent is entitled to the land wherever it is.
It is universally held that judgments should describe with reasonable certainty the land adjudicated therein, both in ejectment and actions to determine title.* If there is any difference, it seems the land *484
description should be more definite in the latter, since we are coming to regard ejectment as a possessory action only. [State ex rel. Edie v. Shain, supra,
Affirmed in part, and in part reversed and remanded with directions. All concur.
Krider v. Milner,
Bartlett v. Brown,
Ernsting v. Gleason,
Barnes v. Allison,
Stumpe v. Kopp,
Hanebrink v. Hengst (Mo. Div. 2), 209 S.W. 918, 919(1);
Union Twp. v. Cotton Hill Twp.,
LaRue v. Bungenstock,
Wright v. Hines (Mo. Div. 1), 287 S.W. 471, 474(5).
Williams v. Pemiscot County,
Heard v. O'Dell,
Point Prairie Hunting Fishing Co. v. Schmidt (Mo. Div. 2), 44 S.W.2d 73, 75;
Hecker v. Bleish,
Mo. Lbr. Mining Co. v. Hassell (Mo. Div. 1), 298 S.W. 47, 51(8);
Jones v. Eaton (Banc),
Eversmeyer v. Broyles,
Collins v. Andriano,
Howell v. Sherwood,
City of Columbia v. Bright
Benne v. Miller,
Brummell v. Harris,
Robertson v. Drone,