Goltermann v. Schiermeyer

Macfarlane, J. The suit is ejectment originally to recover sixteen and ninety-five one hundreths acres of land in section 31, township 46, range 1 east, in St. Charles county. The controversy originally involved the location of the true line running east and west through the center of said section, plaintiff having title to the south part of the northwest quarter — 296 — and the west half of the northeast quarter and defendant having title to the southwest quarter and the northwest quarter of the southeast quarter. The disputed land extended from a north and south line through the center of the east half of the section to the west side thereof, being one and six hundreths chains wide on the east and four and thirty-eight hundredths chains on the west end thereof. Each party, at the commencement of the suit, was in actual possession of the lands to which he had undisputed title, using them as farms, but the strip in controversy was in the inclosure of defendant. Two surveys of the line east and west through the center of the section conflicted and the disputed land lay between them. Both purported to be according to the original United States survey. The most northerly line was made by county surveyor Krekel at an early day and was known as the Krekel line. Defendant was in possession to this line and plaintiff was in possession of the land north of it at the commencement of this suit. On a former trial plaintiff recovered judgment in the circuit court and the defendant appealed. , That appeal was heard and determined by this court and the opinion of the court is reported in 111 Mo. 404, to which reference is made for a more detailed statement of the facts. This court held that the most southerly line was the true one, and that plaintiff and his grantors, under their patents from the United States, acquired the title to the disputed land. It also held that under the undisputed evidence defendant and his grantors had ever claimed the Krekel line as the true one. A majority of the court also held that defendant had acquired title to the west two thirds (in length) of the land by the undisputed adverse possession thereof — 297 — for the requisite period. The judgment was accordingly reversed and the cause remanded for a new trial ■on the question of fact concerning adverse possession •of the east end of the land which had not been inclosed by defendant for ten years next before the commencement of the suit. On a retrial the evidence was substantially the same as it was shown to have been by the record of the first trial, the evidence bearing on adverse possession being more in detail. The judgment was for defendant and plaintiff appealed. I. Before the trial defendant amended his answer, pleading that plaintiff by his acts and conduct was •estopped to deny defendant’s title to the Krekel line. On the question of estoppel defendant asked, and the ■court refused to give, the following instruction: “8. If the jury believe from the evidence, that Ernest Goltermann, under whom plaintiff claims title, to the land in dispute, in 1848, or about that time, pointed out to John H. Knippenberg, the owner of the land adjoining that of said Goltermann in the south half of section 31, township 47, range 1 east, the line designated by the evidence in the case as the Krekel line, as and for the true boundary line between his and the said Knippenberg’s land, and that the said Knippenberg, acting upon the faith of said representation, built a fence for about a quarter of a mile on and along the west end of said line, and used the land thus inclosed in connection with his farm for pasture or otherwise up to said fence, and that defendant thereafter, about the year 1868 or 1869, extended said fence east and along said Krekel line about one quarter of a mile and used the land thus inclosed in connection with his farm for pasture or otherwise up to said fence, and again in 1879 or 1880, or about that time, extended said fence east on and along said line to his eastern — 298 — boundary, and used the said lands for pasture, firewood or other purposes,, up to said fence, thus extended, and that during all this time the plaintiff and those under whom he claims were living on the lands adjoining and north of said line, and recognized the said line as the true line, and permitted said improvements to be made by said Knippenberg and defendant without objection, then the plaintiff is estopped from asserting that the Krekel line is not the true line and the jury are instructed that the verdict must be for the defendant as to-all of the land in dispute.” The evidence showed conclusively, and without dispute, the facts upon which the instruction was hypothecated. If the principles of law are, therefore, correctly declared, the judgment was for the right party and should be affirmed. There is no doubt that both parties recognized the Krekel line as the true one, until after defendant had inclosed the land now in dispute,, that is, the east end of the strip, in the year 1879 or 1880, but there is no evidence that the Krekel line along this part of the disputed land was then, or for thirty years prior thereto had been, pointed out by plaintiff or his grantors. The northwest quarter of the southeast quarter of the section which was inclosed by defendant with the three and fourteen hundredths acres in dispute was timber land, and was only used for pasture and for firewood, and such other purposes as such land is applied to in connection with a farm. The dwelling or its appurtenances were not disturbed. Plaintiff testi- ’ fied; the evidence conclusively showed, and it was adjudged on the former appeal, that defendant always claimed title to the Krekel line. It is manifest that essential elements necessary to create an estoppel in pais are wanting under the facts in this case. It is said in Bales v. Perry, 51 Mo. 449: — 299 — “The courts all concur in this, that no man can set up another’s act or conduct as the ground of. an estoppel, unless he has himself been misled or deceived by such act or conduct; nor can he set it up where he knew of had the same means of knowledge as to the truth of the statement as the other party.” Defendant inclosed the east part of the strip in question because he be-. lieved he owned it and not on account of anything done or said by plaintiff. The Krekel line was well known to both parties, but they were mutually mistaken in believing it to be the true line. Under the evidence, we think the instruction properly refused. II. The evidence shows conclusively that defendant and his grantors claimed to the Krekel line from about 1848 to the commencement of the suit, of which, during the.whole time, plaintiff and his grantors had notice and knowledge; that plaintiff built his own fences on or near the Krekel line, where they remained until the commencement of this suit, and, by his conduct, recognized that line as the true one. Defendant inclosed, without objection by plaintiff, about two thirds, being the western part, of the land more than ten years before the commencement of this suit. This was permitted by plaintiff under the mistaken belief that the Krekel line was the true one and not under any agreement as to the true line. The forty acre tract that was inclosed with the east end of the strip now in dispute was unimproved timber land at the time of its inclosure. Defendant had other timber land between his dwelling and said forty acre tract. Only a portion of the disputed land was susceptible of cultivation. Witnesses testified in a general way that defendant exercised such acts of ownership over the land as were usual under such circumstances. The only proof of specific acts of ownership by defendant will be noticed hereafter. When — 300 — plaintiff fenced Ms land lie left an irregular strip averaging about one hundred feet in width, between his fence and the Krekel line, which was used for a private or neighborhood road. The only real question in the case under this evidence is whether defendant acquired title by adverse possession to the land which had not been inclosed by fence for ten years when the suit was commenced. In the consideration of this question we must bear in mind that the statutory rule (R. S. 1889, sec. 6768) that possession under the color of title, of a part of a tract, in the name of the whole tract claimed, and exercising during the time of such possession the usual acts of ownership over the whole tract so claimed, shall be deemed, under the statutes of limitation, a possession of the whole of such tract, is not applicable to cases of interfering or lapping surveys forming boundaries between adjacent proprietors. The exception is recognized by Judge Scott in McDonald v. Schneider, 27 Mo. 411 in the following language: “Where two persons possess adjoining tracts and their possession conflicts or interferes the one with the other, the legal possession is adjudged to be in him who has the better title — for, as both can not be seized, the possession follows the title — yet, if he who has the inferior title enters upon the interference and actually occupies it adversely to him who has the better title for a sufficient length of time, he will acquire a title against the true owner by limitation as to the portion actually occupied, although the true owner may be in the actual possession of that portion of his tract which is not covered by the interference.” So, Judge Black says in this case (111 Mo. 421): “As the plaintiff is the rightful owner of his farm, and is in posses-^ sion of a part, that possession will draw to him possession of all the land embraced in his muniments of title — 301 — which, is not in the actual exclusive possession of the defendant; and this would be true if defendant had color of title. The defendant, to defeat this action, must, therefore, show actual, exclusive adverse possession for the period of ten years before the commencement of this suit.” See, also, Ozark, etc., Land Co. v. Hays, 105 Mo. 151 and the rule there summarized, and eases cited. While the records of the county court concerning the survey and sale of the south half of the section as school lands, which were introduced in evidence in this trial, and the patents issued' by the state to the purchasers, may show color of title in defendant to the disputed strip of land, still, plaintiff, having title to, and possession of, the remainder of the tract, is seized of all contained within the muniments of his title, to which defendant had not acquired seizin by actual, visible and exclusive, adverse possession for ten years. III. The impracticability of formulating any general rule for determining what possessory acts will start the running of the statute' and keep it going has often been expressed by this court. The question of adverse possession is one, says Judge Scott, “compounded of law and fact, and every case in which it is involved must be determined by its own circumstances, ’ ’ depending upon the nature and situation of the land and the uses of which it is capable. Draper v. Shoot, 25 Mo. 203; Leeper v. Baker, 68 Mo. 402. We may add that it depends much also upon the nature of the claim under which the right to the possession is asserted. The statutory constructive possession of an entire tract which accompanies actual possession of a part would require acts of ownership less specific ‘ Than would be required of one who enters without right and retains possession by wrong.” In the former'only the exercise of ‘The usual acts of ownership” of the part not actually — 302 — possessed is required, while in the latter the possession will not be extended beyond the limits of actual occupancy. Bradley v. West, 60 Mo. 40. In cases like this, in which possession is taken in good faith, under color of title or claim of right, it is held that to constitute an adverse possession there need not be a fence, building or other improvement made. “It suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by the statute.” Draper v. Shoot, 25 Mo. 203. It will be observed that this rule requires less to constitute adverse possession than is required of a mere trespasser and more than is required of one in possession of a part under color of title to the whole tract. All the authorities agree that the acts of possession must be visible and continuous for the requisite period in order to create the bar. Sedgwick and Wait on Trial of Title to Land, secs. 735, 737. It is not required that an act of possession should be done every day or month or at any definite intervals, but they should be of such frequency and character as would at all times apprise the owner “that his seizin was interrupted, and that his title maybe endangered.” “It would be a new and dangerous doctrine,” says Hough, J., in Turner v. Hall, 60 Mo. 275, “to hold that a possession under color of title may be discontinued after a year, or a month, or a week, and that thereafter the constructive possession of the land would follow the color of title instead of the true title.” Judge Bliss says in Musick v. Barney, 49 Mo. 463: “With the short limitation we have in Missouri, it would endanger property rights to permit a loose claim to land, with such acts of ownership only as might be exercised without attracting the attention of the real owner, and without actual occupation, to ripen into — 303 — title.” He says further that, “the indications of the claim and possession should be so patent that he (the owner) could not be deceived.” In the cases of Leeper v. Baker, 68 Mo. 400, and Mississippi County v. Vowels, 101 Mo. 225, the adverse claimant had color of title to the whole tract, and actual possession of a part, and, therefore, constructive possession of the disputed tract, which only required the exercise of such acts as an owner of the whole tract would, under the condition, situation and character of the land, have exercised. R. S. 1889, sec. 6768. Now, applying these principles to the facts in this case, I am of the opinion that defendant wholly failed to show title by adverse possession to that part of the land in dispute which was inclosed less than ten years before the commencement of the suit. We are able to find in the record but two specific acts of ownership and possession exercised by defendant for the thirty or more years he and his grantors claimed to the Krekel line. In 1871 or 1872 he removed from the land two wagon loads of dead pin oak timber for firewood, a part of which he cut and a part of which had been cut by plaintiff, As to this act defendant testified: “We got timber once; we was out of firewood, and there was some pin oaks' and some timber lying out there. Charlie Gloltermann cut that, and I got my hand, and me and him went over there and told him we wanted to get that wood for firewood. “Q. Charlie G-oltermann had cut it? A. Yes, sir; and we cut some more, so we had two loads. “Q. When was that? A. That was in 1872, 1871 or 1872.” Again, m 1876, defendant cut and removed a load of hickory timber for axe handles. The first instance shows that plaintiff also exer — 304 — cised acts of ownership over the land. Though it did not appear that he then asserted any claim to it, yet this evidence shows that in the great abundance of timber at that time division lines were not regarded in its common use. If the second instance was known to plaintiff, taken alone it could only be regarded as one act of trespass, which was not repeated while the land remained uninclosed. The possession did not have that visible continuity which would divert the constructive possession of the owner. A mere claim to land unaccompanied by possession will not ripen into a title, however long or persistently the claim may be made. An owner is not required to assert or defend his title, so long as his constructive possession is not interrupted. The fact that plaintiff made his improvements according to the Krekel survey and made no claim to the land south of that line, has no signification further than showing that he had knowledge of defendant’s claim and its extent. The title was in plaintiff, and could only be divested by affirmative acts on the part of defendant. Sherwood v. Baker, 105 Mo. 477. I am of the opinion that no evidence of the necessary, continuous and visible adverse possession was shown, and that the judgment should have been for plaintiff for all the land which was inclosed within ten years before the suit was commenced. Judgment reversed and cause remanded; Black, C. J., and Brace, J., dissent. The other judges concur.