Brummell v. Harris

YALLIANT, J. Ejectment for strip of land twenty feet wide alleged to lie along the east side of the following described lands in Grundy county which belong to plaintiff, to wit: West half of southeast quarter of section 12 and northwest quarter of the southeast quarter of section 13, in township 61 and range 21 west. Defendants own the lands adjoining the plaintiff’s on the east; and this controversy arises out of a disputed boundary between them. The petition is in the usual form. The answer is first a general denial, then a plea of the statute of limitations, and third an agreement alleged to have been made in 1863 between defendants, then and now owning the land on the east, and one Samuel Luke then owning the land on the west, which the plaintiff now owns; that by this agreement Luke and defendants not knowing where the true line of division was, marked off and staked out a line and agreed that it should be the division line between them; that in accordance with that agreement the parties to it built a division fence on that line and each took possession and occupied on his side up to the fence; that in 1867 Luke sold his land in section 12 to one Baker who had it surveyed and found the division line to be as Luke and defendants had before agreed,, and then Baker and defendants again agreed to that as the line between them, and built a fence on it; that from the time of the agreement — 434 — with Luke in 1863 .to the present time defendants have been in possession of the land east of that agreed line, and that Luke and those claiming under him, including the plaintiff,, acquiesced in defendant’s occupancy and claim for nearly thirty years. The reply was a general denial except admitting the ownership by plaintiff and defendants of the tracts of land respectively of which the division line is in dispute. The plaintiff’s evidence tended to prove that the true division line between the lands of the parties was from fourteen to twenty feet east of the fence that now separates them; that this was shown by a survey made by County Surveyor Brown in 1891. Defendants’ evidence tended to prove the affirmative defenses set up in their answer. The testimony also tended to show that eight or ten years after the original fence, which was a rail fence, was built, defendants planted a hedge on that line in section 13, and by permission of the then owner in order to occupy the line of the old rail fence with his hedge he moved the fence a few feet west; that subsequntly from time to time as it became necessary to replace the old with a new fence, the new portions were built at a distance of four or six feet west of the old, where the fence now standsj and only traces of the old rail fence remained when Brown made his survey in 1891; there was testimony tending to show that these changes were the result of circumstances making it more convenient to put the fence where it now is, than on the old line, and that it was done without intention to indicate a new division line. After the testimony was all in the court gave the following instructions on behalf of the plaintiff to which defendants excepted. “1. The jury will disregard all evidence, if any, given by defendants of any agreement between themselves and Samuel D. Luke, or themselves and ¥m,. Hoit,that the fences — 435 — should be erected upon other than the true line, or that any other than the true line was agreed upon as such by them. “2. Under the pleadings, law and evidence the firiding must be for the plaintiff for the strip of .ground mentioned by the witness as being north of the branch and between the center of the place formerly occupied and the present fence, and in case the jury should find for the plaintiff for such portion of the premises only, the verdict may be in the following form: “We the jury find that at the time of the institution of this suit the defendants did and now do occupy a strip of land varying in width of from-feet to-feet (between the center of where the old rail fence formerly stood and where the present plank, post and wire fence now is, north of the branch mentioned by the witness), off of the east side of the northwest of the southeast quarter, and the east side of the southwest fourth of the southeast quarter of section 12, township 6, range 24, and being between the center of where the old rail fence formerly stood and where the post, plank and wire fence now is, and assess plaintiff’s damage for the taking thereof at $-r, and the monthly rents and profits at' $-. “3. Although some of the persons through whom plaintiff claims to derive title to the premises in question prior to the purchase thereof by plaintiff, agreed upon a line therefor and actually took possession and occupied up to said agreed line, yet if defendants abandoned the same and removed and changed their fences therefrom, they can not now plead such former agreement and possession in bar of plaintiff’s claim. “4. It is not enough to divest the real owner of the land -of the title thereto that he and the adjoining owner, believing the line to be at a certain place, erect a fence and make improvements thereon, or in reference thereto, or even that such adjoining owners expressed to each other their opinion and really believe that a certain line is the true one, — 436 — but in order to bar tbe owner of tbe real title from a recovery of it, no difference bow long beld, wbat improvement may have been made thereunder by another, by reason of tbe statutes of limitations pleaded by defendants, it must appear to tbe reasonable satisfaction of tbe jury and by tbe preponderance of tbe evidence that said adjoining owners mutually agreed and understood that regardless of where tbe true or real line might be, a certain specific line should be tbe true and real line, and unless tbe defendants have so shown in this case, tbe verdict should be for tbe plaintiff for all tbe lands, if any, defendants occupy of bis, and if tbe jury should find tbat tbe survey as testified to by County Surveyor Brown is correct, and. tbat defendants occupy certain portions of plaintiff’s land they can make their verdict in tbe following form: ‘We tbe jury find for tbe plaintiff; tbat at tbe time of tbe institution of tbis suit defendants did and now do occupy of tbe lands, i. e. a strip of from-feet to-feet on tbe east side of tbe west balf of tbe southeast quarter of section 12 and tbe northwest fourth of tbe northeast quarter of section 13, all in township 61, range 24, said strip being between tbe fences now upon said premises and tbe survey made by said Brown, and we assess plaintiff’s damages for tbe taking- and detention thereof at $-, and tbe monthly rents and profits at $- Tbe court also gave tbe following instructions on behalf of defendants: “3. If Samuel Luke and defendants agreed upon a line between their respective lands and built their fences accordingly upon such agreed line, and tbe defendants have continuously occupied all tbe land east of said fine, then said Luke and all persons bolding under him, including tbis plaintiff, are bound by such agreed line; and in such case it would make no difference whether or not plaintiff at tbe time be bought bis land from Holt knew of such agreement, but be would be bound to recognize tbat line. — 437 — “6. If Samuel Lute,,while owner of the land west of the line in controversy, about 1868, agreed with defendants or either of them on a division line between their respective tracts of land, and afterwards the defendants and said Luke built their division fences upon such line so agreed upon, and if the jury further find from the evidence that defendants have ever since occupied (the land on their side of such line and up to the same to the present time, then the said Luke and all persons deriving title to the land west of said line, including the plaintiff, are bound by said line and are not entitled to any land east of such agreed line. “7. The jury are further instructed that in determining the question as to whether or not the defendants or either of them and Samuel Luke did establish an agreed line between their respective tracts of land, the jury should take into consideration all the facts and circumstances in proof, and in determining whether the line had been agreed upon by the parties the jury should take into consideration the long acquiescence of the owners of the said adjacent tracts of land and if the jury find from the evidence that such line had been agreed on by defendants and said Luke, then the verdict should be for defendants as to all the land up to such agreed line. “9. The fact that witness Brown made a survey of the land in controversy, yet the fact of such survey does make the line located by him the true line dividing the northeast quarter of section 13 and the southeast quarter of section 12, but is only evidence tending to prove such line. And the jury in considering his evidence as to such survey should take into account the manner in which it was made and the recognized corners on which the same was based.” The defendants requested the court to give the following instructions: “4. If the jury find from the evidence that for more than ten years next before the commencement of this suit — 438 — tbe defendants or either of them have been in tbe actual possession of tbe land up to tbe old fence as described by tbe witnesses, claiming tbe land up to said fence as tbeir own, tbe verdict of tbe jury should be for defendants for all tbe land east of said fence.” Which tbe court refused to give in tbe form offered, but gave in tbe following form: “If tbe jury find from tbe evidence that for more than ten years next before tbe commencement of this suit tbe defendants or either of them.have been in tbe actual possession of tbe land up to tbe old fence described by tbe witnesses, claiming tbe land up to said fence as tbeir own, regardless of tbe true line, tbe verdict of tbe jury should be for tbe defendants as to all land east of said fence.” To'which modification defendants excepted. Tbe defendants also requested tbe court to give to tbe jury tbe following instructions, which tbe court refused and defendants excepted. “1. Tbe jury are instructed that under tbe evidence in this case tbe verdict must be for tbe defendants. “2. Tbe court instructs tbe jury that tbe defendants make no claim to any land west of tbe line of tbe hedge and tbe old rail fence mentioned by tbe witnesses. And tbe plaintiff can not recover in this action by reason of any of tbe land west of said line being on tbe east side of tbe fence built by plaintiff for Holt or by Holt himself. “5. Tbe jury are instructed that if for tbe period from 1863 tbe defendants or either of them have been in tbe possession of tbe land east of tbe hedge and tbe old rail fence, claiming to bold such land as tbeir own, then tbe verdict of tbe jury must be for tbe defendants for all tbe land east of said rail and hedge fence. “8. Tbe jury are further instructed that by a long occupation by adjacent landowners to a line between tbeir respective tracts and for a period of more than twenty-five — 439 — years, the law raises a strong presumption that they have agreed on such a line as the true line dividing their possessions; and if the jury find from the evidence in this case that the defendants have, since about 1863, occupied the land up to the line of the old fence, then the law presumes that such line is an agreed line between them and the adjoining owners,, and it would devolve on the plaintiff to rebut such presumption by satisfactory evidence to the contrary. “10. If the defendants made valuable improvements on the land in controversy by planting hedge on the same as a dividing line, and by planting fruit trees on the same believing at the time that they were on their land, and if the jury find that the owners of the land west of said line knew that defendants were making such improvements and made no objection thereto, then such owners and all subsequent owners claiming from him are estopped from claiming the land on which the improvements were made. “11. Although the jury should find that there is a strip of land from four to six feet wide north of the road between the fence as now located and the center of the old rail fence, yet if a part of said fence as now located was built by Holt west of said old fence, and the defendants have never claimed said land west of said old rail fence and never denied to plaintiff the possession of said strip, then the verdict must be for defendants as to said strip of land as not having been detained by defendants from plaintiff. And the mere fact that the said strip is within defendants’ inclosure is not sufficient to entitle plaintiff to maintain this duit unless defendants have in some way denied to plaintiff the possession thereof.” The jury returned into court the following verdict: “Trenton, Grundy Co., Mo., April 24th, 1896. Ve the jury find for the plaintiff; that at the time of the institution of this suit defendants did and now do occupy of the lands, i. e. a strip of land belonging to plaintiff, varying in width, situated between the fence now standing and Brown’s survey, — 440 — the same being on the east side of the west half of the southeast quarter of see. 12 and the northwest fourth of the northwest fourth of sec. 18, all in Township 61, Nange 24. ' And we assess plaintiff’s damages for the taking and detention thereof at the sum of three dollars, and total rents and profits at the sum of two dollars. Z. B. Ford, Foreman.” Defendants filed motions for new trial and in arrest in due time, which were overruled and bill of exceptions filed, and the 'cause comes here on appeal. The judgment here will rest on the question of whether or not the instructions given and refused were properly so treated by the trial court. I. The defendants in their answer plead two affirmative defenses, viz.: An agreement establishing the division line, and the statute of limitations. These two defenses must not be'confused, for each is independent of the other and rests on its own foundation. If the agreement is proven according to the rules of law governing it, it is a good defense even though possession under it has not been held for the period prescribed by the statute of limitations; and if possession has been held under the circumstances, and for the period prescribed by .the statute, the law will not suffer it to be disturbed even though there was no agreement in its beginning. The law governing agreements of this kind has been so clearly laid down in an early decision of this court speaking through BylaND, J., that we can not do better than quote it here: “It is competent for two such proprietors to agree what shall be the division line; and when using and occupying up to such a marked line as this, such use and occupancy shall be considered and deemed evidence that such line was agreed to be the division by and between the owners. . The statute of frauds does not touch such a case as this. Here there is no sale of the land to either party. There is no con — 441 — sideration passing from one to the other; it is not a contract either of birying or selling land from one to the other. They own adjacent lots — contiguous lots; they agree that such a marked line shall be the dividing line between the lots which they own; and they use and occupy the respective lots up to this line, not for twenty years, not for fifteen years, but for a length of time sufficient to show the understanding and the intention of themselves — to show that they know their own boundary, that they are content with their own boundary. We consider this case thus: Two owners of contiguous lots or tracts of land, each having his deed for his lot or tract, agree with each other: ‘We fix this mark on the earth’s surface as the line called for in my deed — this mark as the line called for in your deed; here is the line between us. My land mentioned in my deed, comes up to this mark, or this fence, or this wall, on this side, and your land comes to the same, on that side.’ They use and possess and occupy their respéctive lots to this mark. Now, this use and occupancy, without disturbance, for a time long enough for men to show that they know the boundary between their lands, shall be considered binding and conclusive as to such boundary, as well as of such understanding or agreement between them. They shall not, after a lapse of years, longer or shorter, as the circumstances may tend to show their agreement or settlement or the fixing of their common boundary, be permitted afterwards to dispute it. Such boundary, thus agreed upon, shall be considered the true one; and each one considered as the owner of the land mentioned in his deed thus marked out to that boundary between them.” [Blair v. Smith, 16 Mo. 273.] The law as there defined has been so declared by this court in several cases since, and is the settled law of this State. [Turner v. Baker, 64 Mo. 218; Jacobs v. Moseley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 573; Atchison v. Pease, 96 Mo. 566; Kinder v. Milner, 99 Mo. 145.] — 442 — Tbe possession and use up to tbe line by tbe adjacent property owners respectively are important facts in sucb a case, for two reasons: First, it is tbe concession that eacb makes to tbe other and in that sense is tbe consideration of tbe agreement; tbe one says to tbe other: “Although monuments that we now know nothing of may hereafter be uncovered and show that I am entitled to a broader boundary, yet since it may also show that tbe broader field would be yours, now I concede to you tbe advantage that would come to me in tbe one case, and you concede to me tbe advantage that would be yours in tbe other case, and for that mutual consideration we draw tbe line here.” Then when tbe line is drawn and tbe possession is taken tbe deed is accomplished', and eacb owns up to tbe line as fully as if it were a natural boundary and their respective deeds called for it. Second, sucb possession and use are evidence that there was an agreement to establish tbe line; not only to corroborate other evidence of sucb an agreement, but even if there be no other sucb evidence. [Turner v. Baker, supra; Jacobs v. Moseley, supra.] There is no definite period prescribed for tbe duration of sucb possession for this purpose. It is only necessary that it continue long enough to indicate that tbe adjacent landowners so understood it. On tbe other band when a party relies on tbe statute of limitations to fix bis boundary line be need not show an agreement, but be must show that be has held possession up to tbe line for the period prescribed by tbe statute; that be has claimed it as his line against tbe world without condition as to subsequent developments. If tbe circumstances show that be claimed tbe line believing it to be tbe true boundary, but subject to correction as tbe fact might afterwards develop, then no matter bow long be thus held it be would acquire no title beyond bis true line. But if be claimed it against all comers to be tbe true line, and held it for tbe period prescribed by tbe statute, it became bis against tbe world. And — 443 — if tbe adjacent property owners each occupied up to a line both believing it to be tbe true line but neither so maintaining it against wbat might thereafter be discovered to be the true line, the possession of neither is adverse to the other. The character of the occupancy in either of these supposed cases is to be determined hot only from what the parties while occupying said about it, but their acts and the surrounding circumstances.' [Atchison v. Pease, supra; Krider v. Milner, supra; Goltermann v. Schiermeyer, 111 Mo. 404; Shotwell v. Gordon, 121 Mo. 482.] II. Applying the law as above shown to the case at bar it will be seen that the third instruction given at the request of the plaintiff is erroneous. That instruction carries the idea that although the line was agreed upon in 1863 by the then adjacent owners, and they built their division fence on it, and the land up to that line on each side was taken possession of and occupied by the property owners respectively, yet if the defendants ever thereafter moved their fences from it they abandoned it and lost whatever rights they may have acquired under the agreement. If there was such an agreement as defendants’ evidence tended to prove and if the division line became an accomplished fact by both parties taking possession and occupying according to its demarcation, then defendants’ title to that line vested and they were no more required to keep up their fence on that line to protect their title to it than to keep up a fence on any other part of their land to enable them to hold their own. The decay of the fence, its removal, its shifting, were all proper facts in evidence as bearing on the question of whether or not it was built as defendants claim it was in pursuance to the alleged agreement; but the agreement once established, possession of both sides under it and their rights having become fixed, the decay, removal and shifting of the fence had no effect on defendants’ title. The fence as finally reconstructed, shifted from four to — 444 — six feet to tbe west on plaintiff’s land, but tbe plaintiff’s rights under that agreement, if there was such an agreement, were not affected by that shifting; he could recover possession to the old rail fence at any .time unless there was something else to preclude him. And defendants’ rights were equally secure. The fourth instruction given for the plaintiff is also a misconception of the law. Under that instruction although defendants may have been in adverse possession up to the old fence for ten years or more yet unless the possession began under an agreement between the then owners of the land that that should be the división line between them regardless of where the true line might afterwards be found to be, the statute of limitations was of no avail. The giving of these two instructions shows that the court confounded the two defenses pleaded by defendants, holding that the title by the agreement depended on continuous possession and the title by limitation depended on the agreement in its inception. HI. The only serious error in the giving and refusing of the instructions was in the giving of instructions numbered 3 and 4 for plaintiff as above stated. But some of the other instructions are subject to criticism for their forms of expression; and as the cause is to be retried we will call attention to them. The first instruction given for plaintiff was doubtless intended to withdraw from the jury any evidence that may have fallen from the lips of the defendants themselves as witnesses touching the alleged express agreement between themselves and Luke, and also what passed between them and Holt, because these two persons were dead. If there was any such evidence that went in against plaintiff’s objection, or before they had opportunity to object, the court should have withdrawn it by an apt instruction. But tlfis instruction is so worded that it is liable to be construed to include any evidence on that point by other witnesses in — 445 — behalf of defendants. Besides if there is any evidence of that kind from defendants themselves we have not perceived it, and if there was none the instruction was misleading. In modifying the fourth instruction asked by defendant the court had the correct idea in its mind, but did not express it with sufficient clearness to bring it within the understanding of the jury. We have seen from the decisions above cited that the difference between claiming to a line subject to correction and claiming to it absolutely has called forth elucidations from learned judges, and it is a subject in which a jury should not be left to grope. The defendants’ instruction as asked was a correct statement of the law as far as it went, but, as the learned trial judge rightly considered, it was liable to misconstruction under the circumstances, and therefore should have been qualified. The instruction should have been given in the form as asked, and then the court should have prevented its misconstruction by adding in effect that in order-to find that defendants claimed up to the fence within the meaning of that instruction, they should be satisfied from the evidence that their claim was not conditioned on the fence being on the true line as subsequent developments would show, but a positive claim to the fence as the true line. The fifth instruction asked by defendants is of the same character and should be treated in the same manner. The first, second, eighth,' tenth and eleventh instructions asked by defendants were properly refused. The facts referred to in the eighth and tenth instructions were properly in evidence, and were facts to be considered by the jury as bearing on the question of -whether or not there was an agreement as claimed by defendants and what was done under it; but the weight to be given to those facts as evidence was within the province of the jury. The evidence shows without contradiction that from the date of the building of the old fence in 1863 to the present — 446 — time defendants have been in tbe possession of tbe land up to tbat fence. But it also shows that since tbe building of tbe new fence a strip of four to six feet in width of plaintiff’s land is in defendants’ inelosure. But tbe evidence tends to show tbat that resulted from a rather careless yielding of tbe parties, including plaintiff and defendants, to tbe physical conditions of tbe land, than from a purpose to change tbe line. Defendants’ second and eleventh instructions were on tbe theory tbat as they bad never made any claim to tbat strip between tbe old and tbe new fence plaintiff was not entitled to a verdict on tbat account for tbat much. But those instructions were rightly refused. Because although defendants in their evidence showed they made no claim to that strip, yet in their answer they claimed all the land sued for, and put tbe plaintiff to his proof. If defendants in their answer bad disclaimed that strip then, unless plaintiff at the trial could have proven tbat defendants bad withheld it from him, he could not have recovered at defendants’ cost. IY. There is one other error to be guarded against on the retrial of this case, if the verdict should be for the plaintiff. The judgment must follow the verdict, and the writ of possession must follow the judgment. Therefore the verdict must so describe the land which the plaintiff recovers, as that the description alone will show the sheriff exactly what he is to tahe from defendants and give to plaintiff. It is not sufficient to refer to evidence whereby the sheriff may ascertain what the jury intended to find but failed to express. And the burden is on the plaintiff to give the jury such fixed monuments or official documentary data as will enable them to describe the land they intend him to recover with so much certainty that the sheriff, without other evidence, may execute the writ. The jury’s verdict in this case described the land plaintiff was to recover as “a strip of land belonging to — 447 — plaintiff, varying in width, situated between the fence now standing and Brown’s survey, the same being on the east side of,” etc., describing plaintiff’s tract of land by the Government numbers. The reference to the fence now standing on the land is a sufficient designation of one side of tbe strip, but “Brown’s survey” is too indefinite and “varying width” is too indefinite. The judgment of the circuit court is reversed and the cause remanded to be retried in accordance with the law as herein expressed. All concur, except Marshall, J., absent.