Roecker v. Haperla

Maceablane, J. The action is ejectment. The controversy is one over the division line between the east and west halves of lots 7, 8 and 9, of Yogles third addition to Westport. The length of the three lots north and south is eight hundred and twenty-five feet, and in width three hundred and forty-six and five tenths, as shown on the plat. Plaintiff has a deed to the west half and defendant claims the east half. For over ten years a fence divided the possessions of the respective claimants. Afterward that fence was removed and for a time there was no division fence. About 1891, defendants built a division fence, commencing on the north about four feet west of the location of the old fence, and running southerly it crossed the line of the old fence about six hundred feet south of the north line of the lots and ended on the south line of the lots about one and five-tenths feet east of the line of the old fence. This fence it will be seen took into defendant’s inclosure a wedge-shaped lot four feet wide at the north end and coming to a point about six hundred feet.south, which had formerly been in the inclosure of plaintiff. This suit is to recover possession of that piece of land. The answer to the petition is a general denial. After hearing the evidence offered, by plaintiff, the [36] court, on request of defendant, gave an instruction directing a verdict for defendant. Thereupon plaintiff took a nonsuit with leave. A motion to set aside the nonsuit was overruled, and plaintiff appealed. I. While the evidence is very conclusive that plaintiff occupied the land for more than ten consecutive years before defendant took possession thereof, yet, after a careful reading of the evidence, we are of the opinion that such occupancy was not adverse, in the sense that it would divest the title of the owner of any part of the east half of said lots, so occupied. It is very evident that piaintiff never intended to claim beyond the true dividing line, for he now claims, in this suit, to a line made by the surveyor which is east of the line of the old fence, which formerly marked his possession. Though he testified on the trial, he does not pretend that the line of the old fence was adopted by agreement of the parties, as the true dividing line, nor does he testify that he intended the old fence as the boundary to his land regardless of where the true line, when established, should be. So, if the new fence is on the true line dividing the lots, then the land in dispute is located on the east half thereof, and plaintiff is not entitled to the possession. His possession under a mistake or ignorance of the true dividing line, without intending to claim beyond the true line, when discovered, will not work a disseizin in his favor. Battner v. Baker, 108 Mo. 315, and cases cited. The evidence tended to prove that the land in question lies in the west half of the lots. The line was located by two surveyors and each testified that the true line was east of the disputed tract. If their testimony is true then plaintiff should recover provided he has shown such title to the west half of the lots as will entitle him to recover in ejectment. The only evidence of title offered by plaintiff was [37] a deed from a prior claimant to the west half of the lots, with actual possession thereunder for more than ten consecutive years. If the old fence was on the true division line, then the actual possession of plaintiff for ten years would be adverse and would make his title good as against defendants, who, so far as appears, had no title. While the possession beyond the true line was not adverse, because taken .through mistake, the same can not be said of a possession within the true line. It can not be said because the division line is unknown or in doubt that the possession within such line is not adverse. The actual possession of all the land within the description contained in the deed is presumptively adverse, and,, if the possession has been continued for ten years or more, it confers upon the possessor a title upon which he can recover in ejectment. The evidence shows that plaintiff held the actual possession of the land sued for, or a portion of it for over ten years, claiming under a deed from a prior possessor. If the evidence should show that the land, or any part of it, is within the boundaries called for in the deed, that is, within the west half of the lots, then plaintiff ought to recover the land or such part thereof. The evidence offered by plaintiff tends to prove that the land, or most of it, is located in the west half of the lots. The demurrer to the evidence should have been denied. The question whether the disputed land is located in the east or west half of the lots should have been submitted to the jury. The judgment is reversed with direction to set aside the nonsuit and grant a retrial. All the judges of this division concur.