Ward v. Ihler

Shebwood, J. Action of trespass under the statute to recover treble damages for certain timber alleged to have been cut on the northeast quarter of the southwest quarter of section 8, township 43, range 11, owned by plaintiffs’ testator. Defendant and that testator were conterminous proprietors; the latter owning the forty already described and the former “was owner of the adjoining — 378 — forty acres on thewesi,” as plaintiffs state; and defendant’s counsel declare that: “The defendant owns the land immediately west of that tract,” referring to the tract first aforesaid described. . In another place, defendant’s counsel assert that, “Ward owned the northeast quarter of southwest quarter, and Edward Ihler, through whom defendant acquired title, owned the forty immediately west” But the land on which the trespass is supposed to have • occurred was, as stated in the petition, the northeast quarter of the southwest quarter. If so, then if defendant owned the forty immediately west of that, then he must have owned the northwest quarter of the southwest quarter. The plat, however, hereto subjoined, and which was used by the witnesses when testifying, shows that Ihler owned the forty immediately east of that owned by plaintiff’s testator, and the language of the witnesses corresponds with the. plat in this particular, for Fowler, the deputy surveyor who assisted in surveying between the respective proprietors and running the true line according to government field notes, said when referring to the plat before him: “This land here on the west here is owned by Mr. Ward; this is Mr. Ward’s land; this is west right here (indicating on plat). I am holding it in front of the jury so that they can understand the map. This on this side here is Mr. Ihler’s; this is the line running right through the center of section 8, and there seems to have been an old line there before we got there; line running down here where you see those dots made along there.” If this is so, then Ihler owned the northwest quarter of the southeast quarter. At the trial defendant admitted that he cut the timber as charged in the petition, but claimed that it was cut on his own land. — 379 — B to C represents old line south of the fence, distance about 230 yards. C to b represents old line north of the road, distance about 210 yards. A to a represents new line. B to b represents old line. — 380 — It seems from the testimony of Fowler that on the north of the Castle Rock road to Jefferson City, the land had been fenced, but not to the south of that road, such fence being placed on the dotted line on the north side of that road, but did not extend to the south side of the Castle Rock road, where the dotted line again appears. This fence from its north initial point, extended half way down the line of the forty and stopped at the Castle Rock road. On the north side of that road there was no timber, but the land was cultivated up to the fence on both sides of the agreed line by the adjoining proprietors. The timber in question was cut on the south side of the Castle Rock road, and on the Ihler side of the true line, west of the dotted line, and east of the true line as shown on the plat. The place where the timber was cut was wood land, and no fence existed or had ever been put there between the conterminous proprietors; and the surveyors had the government corners to go by, there being no dispute about such corners-on either side of the section. E. W. "Ward had, it seems, bought the land in 1864, and the cultivated land had been in cultivation twenty-seven years, on both sides of the fenced line. After Ward took possession, Ihler came, and in 1867 the parties had the line, as shown by the dotted line, run off. There was no dispute about the location of the line, but the parties Ward and Ihler agreed to build a fence on the dotted line they agreed upon north of the Castle Rock road, and each built his portion of the fence, and they agreed upon that line, as one witness states, as the correct line clear through the forty, though there was no fencing doné, cultivation, or adverse possession taken except for the distance of the fence made on the north side of the Castle Rock road. This is the substance of the testimony. — 381 — The trial court on conclusion of the plaintiff’s evidence, gave, at the instance of defendant, an instruction in the nature of a demurrer, etc., whereupon, after the usual steps, the cause was taken on error to the Kansas City court of appeals, where the judgment was affirmed; but on motion of plaintiff’s suggesting that the case was one involving title to real estate, an order of transfer was made to this court. After looking carefully through the testimony in this case no reason is seen to doubt .the correctness of the ruling of the trial court or of the judgment of the court of appeals in affirming the same. The only question before the court, was as to where the true line was at the point where the alleged trespass occurred. Under frequent rulings of this court where a line is in dispute and parties agree upon what is the correct line, and take possession and occupy in accordance with such agreement for the time requisite to bar an entry, title will be conferred regardless of where the true line is. And- such agreement is not within the statute of frauds. Jacobs v. Moseley, 91 Mo. 457, and cases cited; Krider v. Milner, 99 Mo. 145. But it has never yet been determined what the effect would be where the agreement as to a given line is made to extend far beyond any boundaries of actual occupancy. No court or text-writer has yet ventured to assert such tentative line would not be within the statute of frauds. No court has ever decided that such projected line unaccompanied by occupancy would be binding on the parties agreeing thereto. In this case, then, plaintiff’s testator acquired no title to the land not actually occupied by the inclosure made. The rest of the'land being unhampered by such occupancy, the possession of each owner followed his title to the true line, and that was to be determined by — 382 — the government corners and field notes. Knight v. Elliott, 57 Mo. 317; Jacobs v. Moseley, 91 Mo. 457. In every substantial incident this case closely resembles that of Goltermann v. Schiermeyer, 125 Mo. 291. Following the ruling in that case we affirm the judgment. All concur.