136 Mo. 485 | Mo. | 1896
Lead Opinion
This case, between the same parties and upon identically the same state of facts, was before this court and is reported as Whitehead v. Ragan in the 106 Mo. 231. When here then, the judgment of the circuit court was reversed and the case remanded for a new trial. What became of that case is not disclosed by the record before us, but on the eighteenth of June, 1892, plaintiff filed his petition as a basis for the present Suit, asking for the recovery of possession of fifty feet off of the south end of lot one of Kritzer & Ragan’s subdivision, etc., claimed to be unlawfully withheld from him by defendant, and for damages, and monthly rents and profits. Upon the issues as joined, the case proceeded to its second trial before the circuit court, upon what might be said to be identically the same state of facts as was developed at the former trial when the case reached this court on its first appeal.
The statement of facts as detailed in that opinion will be adopted literally as the statement of facts in this, and is as follows:
“About the year 1870 defendant, Mary Ragan, and one Virginia Kritzer, being the owners of the whole tract, had it subdivided into seven lots numbered from 1 to 7. A plat of the subdivision was made and recorded. The dimensions of each lot and the area were marked on the plat. Lot 1 is designated on the plat as a parallelogram, eleven and thirteen hundredths chains north and south, five and thirty-four hundredths chains east and west, containing five |Tand ninety-four hundredths acres. This lot lay in the ¶ northwest corner of the tract. Lot 4 lay south of and adjoining lot 1, but extending six and sixty-six hundredths chains further east. The north and south line on the west side of lot 4 as marked on the plat was*488 eight and seventeen hundredths chains, and the lot contained twelve and ninety-two hundredths acres.
“On the first day of September, 1870, defendant conveyed, by quitclaim- deed, to Virginia Kritzer, all her interest in lots 1, 5, and 6, reciting in the deed that lot 1 contained five and ninety-four hundredths acres ‘as will appear by reference to the recorded plat of said subdivision.’ March 17, 1885, Virginia Kritzer and husband conveyed to Larkin and Blackmar, by warranty deed, lot 1 under the following description: ‘Lot number 1 in Kritzer and Ragan’s subdivision of the east half of the northwest quarter of section 21, township 49, range 33, containing five and ninety-four hundredths acres more'or less, including thirty feet roadway.’
“April 22, 1886, Larkin and Blackmar conveyed, by warranty deed, to plaintiff Whitehead, ‘lot 1 in Kritzer and Ragan’s subdivision in east half of the northwest quarter, section 21, township 49, range 85, in Jackson county, Missouri.’ When he purchased he was not shown the corners of the lot, but was referred to the plat for quantity, courses and distances. .
“At the time of plaintiff’s purchase, lots 1 and 4 were included in one inclosure. Soon thereafter defendant built an east and west fence, as she claimed, on the north line of lot 4 for the purpose of a separate inclosure of that lot. Plaintiff claims that this fence is about thirty-five feet too far north and includedTthat quantity of lot 1, to recover which this suit is prosecuted.
“An accurate measurement of the north and south line of plaintiff’s lot 1, commencing at defendant’s fence, shows an unquestioned shortage of thirty-four and fifty-eight hundredths feet as compared with the whole length of the lot as shown on the plat. All the*489 foregoing facts were shown by plaintiff, and are not disputed.
“Defendant offered evidence which tended to prove that, when the subdivision was made, stones were planted to mark the four corners of lot 1; that after she conveyed her interest in lot 1 to Kritzer in 1870, the line between the stones planted for the southwest and southeast corners of lot 1 was adopted by them as the true division line between lots 1 and 4, and was so recognized and used until plaintiff purchased lot 1; that the north and south lines of the subdivision on the west side were fifty-one feet shorter than was shown by the plat; and that the division fence was so marked, held and recognized.”
It might be well, at this point, to further add that no witness for defendant in attempting to show that stones were planted to mark the corners of lot 1, stated that they were visible upon the surface of the ground, so as to indicate to one not familiar with the survey, their location, but all spoke of them as buried or hidden stones. No stones or monuments locating the southeast and southwest corners of lot 1 were visible to plaintiff when he purchased his lot, nor were the places where they were buried or planted pointed out or named to him.
At the close of the testimony, the trial court, in the case reported in the 106 Mo., directed a verdict for plaintiff andidefendant prosecuted her appeal, alleging that action of the court as error. This court then sustained the contention of defendant, and reversed and remanded the cause for a new hearing, upon the theory, as expressed in the opinion as then announced, that the boundary line as actually located was a question for the determination of the jury, in the conflict between the contending lotowners, and.that if the line as fixed by the stone between lots 1 and 4 was located upon the
At the close of the testimony-in the present case the trial court, following in part the theory of the opinion in the 106 Mo., gave the following instructions for plaintiff, upon which the jury found a verdict in his behalf, for the giving of which, and the refusal ‘of all instructions as asked by defendant, and for various reasons set out in the bill of exceptions filed herein, defendant again prosecutes this appeal.
“1. The burden of proof rests on the plaintiff and he must make out his case by the greater weight of the credible testimony in the case.
“2. If the jury believe from the evidence that at the time Kritzer and Ragan’s subdivision was surveyed and platted the line between lots 1 and 4 thereof was marked and established by corner stones set under the directions of the surveyor, making said plat/at the southwest and southeast corners of lot 1, and tjiat the land in dispute lies north of the line fixed by said stones, then the finding must be for plaintiff; but if the land in dispute lies south of the line fixed by said stones, then the finding must be for defendants.
“3. If you believe from the evidence that at the time Kritzer and Ragan’s subdivision was surveyed and platted ho stones were set under the direction of the surveyor making said plat at the southwest and southeast corners of lot 1, thus marking and establishing the line between lots 1 and 4, then you will find for plaintiff.
*491 “If you find for plaintiff as to the land in dispute you will assess his damages at such sum as you believe from the evidence he sustained from the commencement of this action to this date by reason of defendant’s withholding from him the possession of said land, not to exceed one thousand dollars; and you will also find the value of the monthly rents and profit of said land, not to exceed twenty-five dollars per month.”
If, under the facts of this case, it was proper to submit the issue to the jury, as to where the dividing line between lots 1 and 4 was located (by the cornerstones set up at the southeast and southwest corner of lot 1) the instructions as given might be subject to several objections urged against them; but as the verdict of the jury was for the right party, upon all the testimony offered, and as the court should have directed a finding for the plaintiffs upon the undisputed and admitted testimony, the error of instructions upon a theory of law, erroneous when applied to the facts of this case, are not hurtful, and do not amount to error that will justify the reversal of the judgment that was properly found upo^Jthefacts of thecase. ......
r While it is a well settled and recognized rule of eohstruction, in the determination of boundaries of lands, that known and fixed monuments will control, though they conflict with the courses and distances called for in the deed, as was announced in the opinion in this case when here on the former appeal, and as now contended for by defendant, under the facts in this, as under the facts of that case, we have no monuments, no cornerstones, marking the division line between lots 1 and 4 that call for the exercise or enforcement of the doctrine above announced.
Here the cornerstones, according to defendant’s own testimony, that were planted at the southeast and southwest corner of lot 1, marking the division between
If no stones, as monuments, were established as such, marking the boundaries of, or indicating the division line between lots 1 and '4, and if no mention or reference was made to them in the recorded plat of the subdivided tract of which lots 1 and 4 form a part, what error could a court commit against defendants for refusingAnstructions based upon the question as to the locathp of the would be monuments called stones, or in the giving of instruction numbered two for plaintiff directing.a verdict against him, if the jury should find that when the land was surveyed, subdivided and platted, the line was marked and established by corner stones set under the direction of the surveyor, at the southeast and southwest corners of lot 1, and that the strip in dispute was south of said line as indicated by said stone; and in favor of plaintiff, if they should find the strip was north of said stones, or a line fixed .^thereby? « » *
That the instruction as written is subject to the criticism of submitting to the jury an issue not raised by the testimony, is unquestionably true. No witness claimed or pretended to assert that the strip of ground
Where there is a conflict between courses and distances, on the one hand, and monuments on the other mentioned in the description in a deed, the monuments will prevail an d the courses vand distances will be ignored, is a rule universal in its application; but if no monuments are mentioned in the deed (as none were, in any of the deeds made to this property, by mesne conveyances from defendant to the plaintiff herein, or in the subdivision plat of the entire tract, owned by defendant and her sister, of which lot one formed a part), the courses and distances named in the plat, to which the deed refers, must govern, and private or hidden monuments established by subdividing cotenants, for their own convenience, must yield or be ignored.
To warrant the court to receive and hear testimony on the theory of a mistake in the description of the
. With such a rule of construction in force, the lot-owner would be in complete ignorance of his true boundaries — would practically be without line or compass. No amount-of investigation or research on his part would necessarily lead to a correct determination' of his lot lines. If the courses and distances as indicated on the plat of which his lot is a part, are to be overturned, as in this case is sought by the hidden corners, or what is still worse by the testimony of the surveyor himself twenty odd years after the survey was made,- that he established a line at a point thirty or fifty feet from where he certifies on the plat made by himself that it was located, the lot owner can know nothing of his boundaries. Such, as above mentioned, was the character of facts to which resort was made to set aside the lot boundary as indicated on the plat, and they will serve in the extremity of their reach, to emphasize the danger of the rule recognizing the right to permit the possibility .of that character of facts as testimony in.this kind of a contest.
Concurrence Opinion
I concur in the conclusion reached by my brother Robinson but do not agree to all that is said in his opinion.
This case was submitted to the jury upon this, with other, instruction:
“If you believe from the evidence that at the time Kritzer and Ragan’s subdivision was surveyed and platted, no stones were set, under the direction of the surveyor, marking said plat as southwest and southeast corners of lot 1, thus marking and establishing the line between lots 1 and 4, then you will find for the plaintiff.”
By this instruction the question whether the division line betwee'n lots 1 and 4, when originally
On the trial a copy of the original plat was put in evidence, and from it there appears to have been no stones, or other monuments, fixed for the southwest and southeast corners of lot 1 and from this omission the jury properly inferred that none had been placed there. In the absence of such monuments the courses and distances marked on the plat must govern.
One who purchases a surveyed lot, or tract- of land, without notice of the actual boundary, or corners, has the right to rely upon what appears from the original survey, or plat thereof, and is not bound by monuments which do not appear therefrom to have been placed upon the land.
On the other hand, if the plat or survey calls for monuments, a purchaser will be governed by them if their location can be definitely ascertained, though they may have decayed or been removed or destroyed. This rule is applied uniformly in ascertaining the boundaries of government surveys. So long as the monuments placed upon the earth’s surface by the government surveyors can be identified, or the places Where they were planted are known, they must control, no matter what the courses and distances may disclose. Jacobs v. Moseley, 91 Mo. 464; Knight v. Elliot, 57 Mo. 325; Mayor of Liberty v. Burns, 114 Mo. 430.
But if the corners called for are gone, and no fixed monuments are called for in the field notes, .the courses and distances therein called for must prevail in establishing such corners. Major v. Watson, 73 Mo. 664.