City of Maysville v. Truex

BROWN, J. — Ejectment for a small strip of land alleged to b.e part of Sloan street in plaintiff city. There was a judgment below for the defendant, for which plaintiff appeals. The original town, now city, of Maysville, was laid out and platted in the year 1845, as the county seat of DeKalb county, by one G. W. McPherson, Commissioner, upon land donated to said county by the United'States for county-seat purposes. Defendant contests plaintiff’s right to recover on the following grounds: 1. By adverse possession. 2. The plaintiff acquired no title to the streets of Maysville, because of certain defects in the execution and certification of the plat of said city. 3. That plaintiff’s petition is fatally defective in that it does not recite that the land in dispute is within the corporate limits of the city of Maysville. 4. That the defendant is the owner of lots 1 and 8 in block 1 of said city of Maysville,; and that she occupies the identical land which was staked out and sold by DeKalb county to the party under whom she claims as being lots 1 and 8 of block 1 of said city; and that plaintiff, as the successor of said county of DeKalb, in the ownership of the streets of Maysville, is estopped from claiming that the land occupied by her is a part of a street of said city. The defendant derives her title to lots 1 and 8 of block 1 in Maysville, through G. W. McPherson, the-commissioner who platted and laid out said town as the county seat of DeKalb county. Such other parts of the pleadings and evidence as will be necessary to a full understanding of the case will be noted in our opinion. The plaintiff asks a reversal of the judgment, (1) because the court failed to direct a verdict for it; (2) — 625 — because the court erred in its instructions given to the-jury at the request of the defendant. OPINION. The plat of Maysville shows that Sloan street is thirty-three feet wide and lies along the east boundary of said city, and that defendant’s lots adjoin said street. The objections urged against the execution and certification of 'the plat of Maysville must be disregarded, because defendant in the second count of her answer specifically pleads the platting, surveying and laying out of the lots, blocks and streets of said city in exactly the same form, shape and size as shown by the copy of plat introduced by the plaintiff; except, that she does not admit that Sloan street (a part of' which she is charged with being in possession of) is. thirty-three feet wide. The width of Sloan street is one-of the points in controversy, as will hereafter appear. . The further contention of defendant that plaintiff’s, petition does not state that the strip of land in dispute is. within the corporate limits of the plaintiff city, is cured-by defendant’s answer, which admits that all the land occupied by her is in said city. It is a well settled rule-of law that omissions in a petition may be supplied and cured by recitals in the answer. [Grace v. Nesbitt, 109 Mo. 9; Fisher v. Central Lead Co., 156 Mo. 485.] When a fact the existence of which would require proof' by the plaintiff, is admitted in the answer, plaintiff is. thereby relieved of the burden of' proving same. [McKenzie v. Railroad, 216 Mo. l. c. 19.] Defendant’s plea of the Statute of Limitations is. not sustained by the evidence.' There was¡ some evidence that a man named Hammer occupied a shop on the strip of land in dispute in 1859; but there is nothing-to connect him with any of the parties through whom defendant claims title. If Hammer occupied part of — 626 — Sloan street adversely to plaintiff, before defendant can derive any benefit from such adverse occupancy by said Hammer, she must prove that she succeeded to his adverse possession. [Adkins v. Tomlinson, 121 Mo. 487.] Besides, we do not think the question of adverse possession is in this case on the pleadings. Defendant by her answer only claims title to the amount of land which the plat shows to exist in lots 1 and 8 in block 1; and if the land she occupies is in those lots, then there is no adverse possession, because plaintiff only claims title to the streets. The only evidence that defendant is in possession of part of Sloan street is the testimony of a surveyor that he found a stone which he believed to be the east boundary of said street, and that by measuring west ward from that stone thirty-three feet, he found that defendant’s fence extended into the street about ten feet. This was not sufficient evidence upon which to direct a verdict for plaintiff under the pleadings and facts in this case. As we interpret defendant’s answer, she claims that she only occupies a strip of land of the same size. as lots 1 and 8 of block 1, as shown on the plat of Mays-ville and described in her deeds; and that the land she occupies was surveyed, staked off and sold to the parties through whom she claims, by the commissioner of DeKalb county, appointed for that purpose, and that even though a mistake may have been made in platting Sloan street as thirty-three feet wide when it was not in fact that wide, this would afford no excuse for disturbing her possession. She introduced some proof to support this claim, by showing that most of the other houses and improvements along the west side of Sloan street were on a line with her improvements; and offered to prove that if she was compelled to move her fence back ten feet, she would then have ten feet less than she is entitled to under the plat, and that if her improvements were moved back, it would be necessary to move — 627 — or change the location of most of the improvements constructed in all other parts of the city. In other' words, she offered to show that in order to give Sloan street a width of thirty-three feet, it would curtail the width of block 1 to the extent of ten feet, or move all other streets and improvements in the city, including the courthouse square, ten feet further west; but the court refused to allow her to introduce this proof; and we think it erred in so doing. It is true no direct evidence was offered that defendant occupies the identical land which DeKalb county surveyed, staked out and sold to the party under whom she claims. It is not probable that such direct evidence would be obtainable seventy years after the transaction; but the fact that the first parties to build on those lots in 1859 made the improvements on the strip of land now in dispute, is some evidence that the commissioner of the county seat marked out and located the boundaries of that block so as to cause them to build there. The evidence shows that town lots in plaintiff city were selling for five dollars each in those days; and it would be rather against reason to suppose that parties would intentionally build houses in the streets when lots were so cheap. If it is true, as defendant contends, that the courthouse and all other improvements made in the city of Maysville were constructed on the theory that Sloan street was less than thirty-three feet wide, and that if Sloan street is made thirty-three feet wide, it will be necessary to move all other streets and improvements ten feet further west in order to give each owner the land to which he is entitled, according to the plat of the town, this would raise a presumption that there was an error made in the original survey of Sloan street. . No doubt the stakes, stones or other monuments showing the boundaries of the blocks and Streets, as' established by the original survey, could have been easily found when the first buildings and fences in Maysville were constructed; and the conduct of those first settlers, if it — 628 — shows a uniform understanding that the lots and blocks in said city were located as at present occupied, would be evidence that their improvements were made in accordance with the work of the commissioner who was. appointed to lay out the town. Hearsay evidence is admissible to prove the location of ancient boundaries and monuments of lands in which the public have an interest, like the boundaries of streets and highways; and for the same reason, the acts of the first settlers of an ancient town in constructing improvements would, after the death of said first settlers, be evidence that they understood the true boundaries of their property and the streets of such town. [Greenleaf on Evidence (16 Ed.), pp. 222 and 223. St. Louis Public Schools v. Risley’s Heirs, 40 Mo. 356.] It would be unsafe to assume that all the citizens of a town would become trespassers and build their houses upon or into the public streets, and it is not reasonable to assume that the officers of a town or city would permit its streets to be closed up or partly closed for more than half a century. In the absence of evidence to the contrary, the law presumes that even a private citizen proceeds by right and not lay wrong. [Long v. McDow, 87 Mo. 197.] Plaintiff and the trial court seem to have proceeded' upon the theory that as the plat of Maysville designates Sloan street as being thirty-three feet wide, it must be made that wide, even if to accomplish that result it is necessary to hold that block 1 is only 227.6 feet wide, east and west, instead of 237.6 feet wide, as shown by the plat of said city. We cannot subscribe to that doctrine. A more equitable rule is prescribed in our statutes for surveying sectionized lands, whereby if a half-section of land is found to contain a less number of acres than the Government survey thereof indicates, then each subdivision of said half-section must stand its proportionate share of such shortage. [Sec. 11320, R. S 1909.] — 629 — 1. While the trial court committed errors against defendant, it also committed error against the plaintiff by submitting to the jury the issue of whether or not the land in controversy is in the corporate limits of the city of Maysville, that fact being admitted by defendant’s answer. 2. The court also erred in giving an instruction for defendant on the issue of title by adverse possession, which the pleadings and evidence did not warrant. For the trial court’s error in giving these instructions, its judgment is reversed and the cause remanded for a new trial, according to the law as herein announced. All concur.