Wilson v. Lerche

Norton, C. J. — This is an action of ejectment to recover possession of a strip of land of the width of about three feet off of the north side of lot fifty-three, in McGee’s addition to the City of Kansas. It appears from the record that both parties claim through one I. W. Thompson as the common source of title. Plaintiff, Belle H. Wilson, by various mesne conveyances, which were put in evidence, became, in 1881, the owner of lot [476] fifty-three, in McGee’s addition to the City of Kansas, .and defendant, Richards, in 1870, became the owner of lot fifty-two, in said addition, and entered into possession of the same, there being at the time a fence between said lots, and which remained standing np to the time of the trial of this cause. It is insisted by plaintiffs that this fence is not on the true line between said lots, but that it is placed two feet over the line on lot fifty-three ; and it is this strip of land thus enclosed and in defendant’ s possession for which plaintiffs sue. Lot fifty-three is south of lot fifty-two, and the evidence tends to show, if it does not fully establish, the fact that the fence is about two feet over the true line on lot fifty-three. This does not seem to be seriously controverted by the defendant, but it is insisted upon by him that, from 1870 up to the time suit was brought, he was in the open, notorious, adverse possession of the strip, claiming that the fence was on the true line. While there was evidence tending to show this, there was also evidence tending to show that the fence was placed where it was in ignorance of the true line, as Mrs. Goodman testified, that in 1883, defendant, Richards, said that he and Goodman (who was plaintiff’s grantor) had set the fence where they supposed the true line was, and .that Richards, upon then being asked by the witness, if he intended to claim more land than his lot, gave no answer. Goodman also testified, that he had made no arrangement with Richards concerning the line, and had had no occasion to agree or dispute about it, as Richards had occupied both lots most of the time, having rented from him lot fifty-three. The judgment was for the plaintiffs. The cause was tried by the court sitting as a jury, on the theory, as shown by the instructions that were given, that if the fence was placed, in 1870, where it was, in ignorance of the true dividing line, and there was no intention on the part of defendant, Richards, to claim beyond said line, and that Rich [477] ards leased from Goodman lot fifty-three, entered into ■possession of the same and yielded np possession in 1875, a time within ten years next before the suit was-commenced, that then defendant could not recover on the ground of adverse possession, even though Eichards may have held said strip of land adversely ever since-that date. And on the further theory that if Eichards leased of Goodman lot fifty-three, and took and held possession thereof for several years, paying rent therefor, and the true dividing line was within the enclosure of lot fifty-two, of which he was also in possession, his possession of the strip of land in -controversy was not adverse to Goodman during said lease, unless Eichards in some way gave to Goodman actual notice that he occupied and claimed the strip as his own. The correctness of the theory on which the case was tried is fully sustained by the cases of Huckshorn v. Hartwig, 81 Mo. 648; Tamm v. Kellogg, 49 Mo. 118; Wilkerson v. Thompson, 82 Mo. 328, 330. Judgment affirmed, in which all concur.