*1 ‘‘ what feet distance two more than at your examination Q. From motion see my not opinion, does she, That A. find? you did ' object.” an testified, direction - "the could see applicant that Powers Dr. oculist Post, also an Dr. foot.” one at aof hand motion test, the commis- vision scientific amake competency to whose testified, un- was witness, that him as calling sion vouched move- could see applicant evidence that any to detect able move- not see the could opinion she objects, that ment he said is It true any distance. at the hand ment had and that she projection,” some "and perception light had she asked vision,” he was but "qualitative termed what he testimony aas Dr. Post’s by those terms. he meant what explain was not vision applicant’s finding that warranted whole at form perceive either her enable sufficient light distinguish merely to her it enabled distance—that ap- that the evidence substantial was therefore It and darkness. perception. light than that greater was vision plicant’s supra.] Commission, v. [Shelley All concur. affirmed. circuit judgment ux., Appellants. et Lieberman et Paul ux. Wilkinson Joshua (2d) 533. 37 W. S. One, 1931. March Division *2 appellants. 'for Gresham J. Walter D. Gresham Andrew respondents. H. Hull James *3 FERGUSON, Plaintiffs, husband and wife, ejectment sue in C.— of possession strip
for land described as being “about 23/100 land, of an in width acre links and 5 chains in length and being public lying and east of the road the southwest Section Township Range 34” County, in Platte Missouri. defendants, The answer of who are husband general ais wife,
denial; possession adverse “of the land by plaintiffs claimed thirty years;” agreed more than an estoppel. line and By way of e: estoppel, alleg defendants that defendants, being in possession claim, plaintiffs of said land title, under well knew, pro improve ceeded to permanent said land and to build thereon im provements; plaintiffs knew that all being done, of this was tim;e any prior never at July, 1927, question raised as ownership right to defendants’ possession land there to, but expend remained silent and allowed defendants to much money making improvements time erecting buildings thereon.” jury.
A trial before was had court refused defendants’ agreed line, possession instructions on adverse its own gave question an submitting estoppel. instruction jury The instruction advised the that record title to land controversy plaintiffs was in and that the had no record defendants *4 finding plaintiffs title thereto and that the should be for the unless ‘‘ jury and the should find believe from evidence that defendants possession premises they were in under belief that of said an honest thereof, knowing were the de- true owners and that that plaintiffs, premises fendants in under belief possession were of said such that they thereof, knowledge true owners and with were the thereof, were not true owners silent allowed defendants stood premises, improvements on with defendants to make valuable said by defendants, knowledge imiprovements being made that such were any giving notice that objecting without thereto or defendants verdict plaintiffs premises,” said which event the claimed own should be for defendants. in- plaintiffs object except giving of said did not to the by question motion. The
struction its own only jury returned a verdict was the issue submitted and a newt plaintiffs’ motion for defendants. The court sustained specified ground therefor “that there is no evi- as the dence to support the defense of estoppel.” appealed Defendants and the appeal granted was to this court.
The testimony shows that more than forty years before this con- troversy public arose a road was opened established and between quarter southwest of the quarter southeast and the southeast quarter of the quarter southwest 36, Section Township 53, Range 34. This road ran from north to south along upon quarter section point line to a near a rocky bluff about five chains north of the south line of the section. To avoid construction across this bluff the road was curved to the again west and southward in the quarter southeast of the quarter southwest of- said section and continues to an intersection with a along road the south line of the section. This curve in the road left an irregularly shaped tract of land containing about one and one-half acres south and east of the road in the southeast corner of said quarter southeast of the quarter. southwest At the time the opened road was until 24, June 1924, James Morton owned all of the said southeast quarter of the quarter, southwest but on that conveyed date small tract south and east of the road to appellants. The land was described the deed as “a of land containing tract about one and one-half apres lying east of public road in the southeast corner quarter southwest Section Township Range 34 in Platte County, Missouri.” During all this time one Price owned southwest quarter, adjoin- the 40 acres ing the Morton land on the east. At the acquired time Morton land, a fence ran in general northerly southerly direction from somewhere near the bluff to the south line of the section. It seems that from shortly after the construction of road and to the time conveyed Morton the small tract to appellants, the fence was not by maintained kept anyone, repair nor and intact. After the conveyance appellants repaired. fence was However, no fence any was at time built on or across the bluff. Morton testified that he never claimed the line; fence as a fence was there and he let it remain and that he never claimed farther east than property “the line my land Price and the farm.”
In 1924 appellants built a small two-room on house near point bluff where the road curves toward the west and in the year same built a chicken east house south and of the dwell- Respondents ing. acquainted testified that were not with the Price land until 1925 they purchased when the southwest *5 the conveyance from was dated Price. This placed and respondents of record January as of moved 7, 1925, and onto the farm “in Spring Respondent the 1926.” Joshua Wil- kinson that he year testified about a after he his “drawed got deed
425 he,did land, not know were on but that appellants that idea” an the was; could not locate cornerstone that he the corner where finally ran until it was know where the line he did shortly survey direction in before by a at his located mlade appellants In added another room action. filing of this the appellants made $30. In 1927 dwelling at a cost of the house to repairs these and about time the chicken the repairs on house, some appellants that Wilkinson told respondent completed were Joshua away near line of the south been cleared some had since brush and from the the thought had found cornerstone section he the appellants believed the road he able to obtain of view he was then conversation, time, no dis- had been were on To this there his land. respondents appellants cussion, claims or statements between by claims made shows, statements or testimony so far as or. the line person the location about either of them to other statement Immlediately foregoing after the their lands. cor- survey made, the by to appellants, he to caused Wilkinson ap- survey revealed that disputed. The of which is not rectness pellants’ on the southwest house were and chicken house have un- respondents quarter, which of the southeast to questioned appellants notified Thereupon, respondents record title. do, and this to appellants refused buildings, to remove made to the will be reference action was then instituted. Further testimony opinion. in the course of the except. Anpellants object say respondents did not since submitting of its own given court instruction bv acquiesced the instruction thereby estoppel, defense are testimony and law under the as a correct statement there Had issue so submitted. bv the verdict rendered on bound submission of justify the evidence to been sufficient reauire erroneously stated theory court case on been not have would instruction, the trial law thereof ground instruc that the granting on the a new trial warranted except object and failed to tion was erroneous since a new refused had trial court time. Or. if the thereto at the plaintiffs could instruction appealed, (respondents) had giving re thereof objections and the thereto not be considered and W. 455, 122 S. 223 Mo. v. Railroad. in this court. viewed [Kolokas 715; 18, 109 S. W. 211 Mo. Assn. 1082: v. Railroad Green Terminal But Empire 103 S. 66.] Hopkins, 204 Mo. Building Co. ground as specified trial and new the trial court here ordered there, es- defense support therefor that toppel.” is “no evidence requested plaintiffs testimony, of all the At the close and evidence” law under jury “that the court instruct the excepted duly objected and finding plaintiffs, must be for
426 assigned as trial a new in their and refusal'of same tbe to new the granting In court thereon. of the trial action the error in- peremptory plaintiffs’ effect, ruled that in trial court, trial the in sub- court erred the' given and that been have should struction is' no If there evidence. under the of mitting the defense de- support the to record in the or sufficient evidence substantial a new in granting trial the action of estoppel, the of fense must sustained. essen pleaded certain in that is not well of estonuel The defense objec alleged, but since not are estonuel of tial elements eauitable otherwise, evidence pleading and or demurrer bv was made to the tion objection, ami will consider we without thereunder received was any substan is there whether to determine examine the evidence Dairy thporv support [Grafeman estonuel. of the evidence tial. Hendrick, 100 359; Bank, Olden 288 S. Northwestern Co. v. "Referring 13 in evidence 821.] introduced ula.t 533 S. W. Mo. road and the quarter lines section showing the section in house, built dwelling buildings, appellants’ we note that the of straight line road the south end of is at the located quarter the southwest quarter southwest auarter of the southeast point toward road curves the quarter at where the of approximately quarter center line is line section the west. yet located to the east of point, road to that while the line the road, line and the center quarter section of the dwell year is south locatéd in the saíne house built chicken east, buildings located on are and both and farther ing house quarter. quarter of the southeast southwest major improvements before original and these Appellants made quar- acquainted with the southwest were so much as respondents subsequently purchased in they quarter, which ter of the southeast ignorance acting in year appellants, Apparently 1925. inadvertently erected line, these quarter section location buildings of the road that the location despite the fact east thereof erecting inquiry. them In put on might well served to have judgment and do not solely upon their buildings they own acted by anyone. in manner misled they were at that time claim that purchased the south- respondents year Afterwards, .the placed was their deed quarter the southeast west Respondents upon land. did record, they moved and in did line and quarter section not location of the know the exact they discovery 1927 what took to be same ascertain until caused to they immediately survey which cornerstone and the whereby appellants respondents part of be made. No act on and it is charged or shown upon relied is were misled parties All merely were silent. charged been, ignorant to Lave seemed of the exact location of line, clearly appears section upon parity it that respect they stood equal with means knowledge. parties Where have *7 equal knowledge, means of estoppel there in favor of either. Perry, 449; 51 v. Mo. Kaessmann, [Bales Mueller v. 318; 84 Mo. Blodgett Perry, v. 97 10 Mo. S. 990; Laughlin v. 283 Wells, 990; Co., S. W. v. Wood Oil 220 App. Mo. 1004, 274 894; S. W. Co., Harris v. 25 S. Investment W. 484.] “Mere silence of itself will not an raise estoppel. To make the party operate silence of a estoppel as an the circumstances must have been such as to it duty render his speak, to and there must also be an opportunity speak. itAnd is essential that he should have knowledge had of the facts, and that the party adverse should have ignorant been of truth, and have been misled doing into that which would not have done but for such silence.” C. [21 J. .1151and cases there silence, While cited.] amounts to implied concealment or misrepresentation of the true facts whereby another is caused to act to prejudice his or to change his position may give worse rise to estoppel yet silence without knowl- edge will estoppel not work an (Burke Adams, 80 504; Mo. Can- non v. Gibson, 162 App. 386, Mo. 142 730) S. W. and the conduct person of the alleged to be must be in estopped, light viewed of the understanding he had of rights at the time the one seeking to invoke acted in the light and not may what thereafter be learned, as rights may or such thereafter be deter- mined. C. J. 1151, [21 1152.] When appellants added a to the room house in 1926 repairs and made on the chicken in house neither appellants respondents nor were or informed aware of the quar- location of the ter section line between their respective lands. Their deeds were of record whereby each had notice of Respond- title. other’s ents’ silence' under such circumstances cannot be as construed amounting to concealment and is apparent it appellants that when improvements made the in 1926 they 1927 upon acted their own judgment, they as had in 1924 when buildings orig- were inally constructed, and that had the same means of knowledge concerning location of respondents. said line as an It is es- sential element of equitable estoppel person that the asserting the estoppel shall have done or changed omitted some act or his posi- tion in upon representation reliance person or conduct sought to be estopped. Such element does not exist in this case. Essential elements equitable of an estoppel being absent, the action of the trial in granting a new trial must affirmed. Appellants say that respondents judgment no verdict for or there- on could be allowed stand if because prevail,
428 an acre definitely and locate not fix
petition does 23/100 length in the southwest in in chains land,' 47 width and links as thus description that the quarter, and of the quarter southeast tract of particular identify any in petition does set out an apply forty in acres would land said 23/100 .forty acres. in the said measurements land of the same acre of conform should ejectment action judgment an verdict in petition. in out set description of the land to and follow the plat intro- to, relates testimony in case however All the strip testified, surveyor that the shows and the duced into evidence the south- corner of question in the southwest of land in is located description quarter, quarter of the southeast west 47 links in width and land as about of an acre of land, 23/100 southwest length chains in southwest corner being about section, as 23/100 in the length 5 chains of an land 47 links width and acre of *8 section, would southwest comer of sufficiently seem to accurate. petition in that their may amend Upon another trial respect if fit to do see so. affirmed, and a new trial granting order of the GG., concur. Sturgis, it is so ordered. Secldon C., is foregoing opinion Ferguson, PER CURIAM:—The by concur. judges opinion All of the adopted as the court. Burlington Quincy Railroad & Chicago, John Jarvis 602. (2d) S. W. Company, Appellant. 37 One, 1931. March Division