land, was not reversible, when taken in connecSCHOFIELD et al. v. HARRISON LAND & tion with testimony as to the character of the furnace and improvements upon the land, and the fact that witness was simply stating what he MINING CO. (Supreme Court of Missouri, Division No. 1. thought the facts showed, and that there was no evidence to the contrary. June 2, 1916.) 2. APPEAL AND ERROR 1067 HARMLESS ERROR-INSTRUCTIONS. In a statutory suit at law to ascertain and adjudge title to land, error, if any, in the refusal of an instruction for plaintiff that the jury in passing upon the defendant's good faith and those through whom it claimed in taking possession of the land, should consider all the facts in the case, including the purposes for which the land was required, the time for which possession was claimed, the nature of the improvements, the extent of the cultivated part, etc., was not reversible, where there was no evidence that defendant and those through whom it claimed did not enter into the possession of the premises in good faith, and where the evidence showed that the chief value of the land consisted in the timber. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. 1067; Trial, Cent. Dig. § 475.] In a suit at law under Rev. St. 1909, § 2535, to ascertain and adjudge title to land, an instruction that while possession might be maintained by a tenant it could extend no further than the terms of the lease or contract by which the tenant held was properly refused as misleading, where the evidence showed that defendant's tenants, in addition to having possession of definite tracts of land, were also defendant's agents Good faith in taking possession of and hold-in caring for the remainder of the lands, and ing land under deeds means honesty, the ab- that the land constituted one tract and had alsence of fraud or deceit; and "lawful posses- ways been so treated by all of the parties to the sion" means entering upon and holding land and claiming to be the owner, and not as an intruder or trespasser (citing Words and Phrases, vol. 4, p. 3117). 3. ADVERSE POSSESSION 84-"GOOD FAITH" -"LAWFUL POSSESSION." [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 488-500; Dec. Dig. 84. For other definitions, see Words and Phrases, First and Second Series, Good Faith; Lawful Possession.] Under the 10-year statute of limitations, all that the law requires is that the claimant's possession shall be taken and continued in good faith, and be exclusive, open, and notorious, adverse to the world, and continuous for a period of 10 years or more, prior to the date of suit by the owner of the title to recover the possession. suit. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. 116(7).] 10. ADVERSE POSSESSION 101-POSSESSION OF PART-EFFECT-"TRACT." The possession of a part of a "tract," which means a contiguous body of land embraced in one deed, with a claim of the whole, and the usual acts of ownership over the entire tract, establishes possession of the whole which will ripen into title under the statute of limitations (Rev. St. 1909, § 1882). [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 575-589; Dec. Dig. 101. For other definitions, see Words and Phrases First and Second Series, Tract.] 11. ADVERSE POSSESSION 13-THIRTY-YEAR STATUTE. Under the express provision of Rev. St. 1909, § 1884, a showing that the title had issued from the United States more than 30 years prior to the beginning of the suit, that plaintiff failed to bring his action within 31 years after leaving possession of the land, and that defendant and his predecessors had been in the possession ever since claiming title thereto under color of tax deeds, established title in the defendant. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. [Ed. Note.-For other cases, see Adverse Pos-13.] session, Cent. Dig. §§ 65, 67-76; Dec. Dig. 13. For other definitions, see Words and Phrases, First and Second Series, Adverse Possession.] 6. APPEAL AND ERROR 1051(2)-HARMLESS ERROR-ADMISSION OF EVIDENCE. In a suit at law to ascertain and adjudge title to land, error, if any, in the admission of evidence as to the good faith of the defendant and its predecessors in taking possession of the Appeal from Circuit Court, Dent County, L. B. Woodside, Judge. Action by Mary E. Schofield and others against the Harrison Land & Mining ComIpany. Judgment for defendant, and plaintiffs appeal. Affirmed. See, also, 139 Mo. 467, 41 S. W. 234, 61 Am. St. Rep. 464. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This was a suit at law under section 2535, | was in the year 1883 or 1884. Under the R. S. Mo. 1909, to ascertain and adjudge title agreement Ramsey was to cultivate and to 240 acres of land situate in Dent county, particularly described in the petition. It was bought October 24, 1911. The trial resulted in a verdict and judgment for the defendant, and the plaintiffs duly appealed the cause to this court. The paper title to the land was conceded to be in the plaintiffs, but they had paid no taxes on the same since before 1879. The defendant interposed the 10 and 30 year statutes of limitations as a defense in the case. The defendant, through mesne conveyances, claimed title to said lands from Joseph A. Schofield, the ancestor of plaintiffs. Said lands were sold by the sheriff under tax judgments against said Schofield; part in the year 1879, and the remainder in 1880. fence as much of the land as he desired, and in consideration thereof he was to preserve and protect the timber on the adjoining lands of the company. In pursuance to that agreement Ramsey inclosed and cultivated 10 or 12 acres of this land, and always recognized the defendant as his landlord, and patrolled the adjoining lands of defendant and protected it from trespassers. That after the dissolution of the Nova Scotia Company E. L. Dye procured some kind of a title to the land in section 11, another part of this land, and took possession of the same and built a box house thereon and operated a sawmill on an adjoining section. Dye claimed under a deed based on what was known as the Butler sale of Scotia lands. Butler obtained a It is conceded, however, those deeds were judgment and sold some of the Scotia lands void and conveyed no title whatever to the after the conveyance to Harrison, Lackland lands; but defendants contend, and their and Howard. Butler attacked this conveyevidence tended to show that when it and ance, but was unsuccessful. The rights of those through whom it claims title took pos- the parties were determined in this court session of the lands under said deeds, they and the case is reported in Butler v. Harriconstituted color of title. That shortly after son Land & Mining Co., 139 Mo. 467, 41 S. the sale of said lands for taxes, the Nova W. 234, 61 Am. St. Rep. 464. During the Scotia Iron Company duly acquired the same time Dye occupied the lands, he built a small from the purchasers at said sales, and some house, cleared out and fenced about 12 acres 10,000 additional acres in the same vicinity of the land and cut the pine timber off of from other parties, and took possession the southwest quarter of section 11. In a thereof and constructed a large blast furnace subsequent action of ejectment against him, for the manufacture of pig iron, and built a the possession was adjudged to the Harrigood-sized town thereon, consisting of stores, son Land & Mining Company, and Dye varesidences, and barns, for the accommoda-cated the land and the company took postion of the several hundred people who were employed by the defendants' predecessors, at a cost of more than $200,000. Said company, in the year 1880, began the manufac- The Harrison Land & Mining Company ture of pig iron at said furnace, and con-employed D. B. Ball as agent to look after tinued to so do for 4 years, and cut the all of the lands belonging to this company timber from several thousand acres of said and to lease the lanus to tenants and to proland for fuel in the operation of said fur- tect and care for all of the lands and timnace. That said plant was a losing propo-ber, and prevent trespassing. Mr. Ball has sition, and after 4 years it was dismantled and moved to another state. The residences, barns, etc., were left standing for the accommodation of such of the former employés who were left in charge of the property. The principal stockholders, Harrison, Lackland, and Howard, in the meantime, had loaned to said company, it being a corporation, $20,420, and in satisfaction of that indebtedness, the company conveyed to them all of its property, including the land in controversy; and later in the year 1890, said stockholders incorporated the defendant company and conveyed all of said land to it by one deed; and that since said time said company has been claiming said lands, paying the taxes thereon and protecting the timber, as will be presently stated. That T. J. Scott, one of the former employés of the Nova Scotia Company, was left in charge of all its lands as agent or superintendent, and as such he leased several small tracts of the land to various persons; one to S. C. Ramsey, a part of the land in controversy. That session, through its agent, D. B. Ball, and placed a tenant in the house, and has ever thereafter kept one there. acted in this role for more than 18 years, at the date of this trial, and has gone over the lands periodically about once a month and has prevented practically all trespassing on said lands, except by Dye, who claimed to have bought the land. This was particularly true of the lands in dispute, which were also under the protection of Mr. Ramsey. The land is rough, not worth much without the timber. Only about 40 acres in section 11 is susceptible to cultivation. The possession of Ramsey was open and notorious, and the possession of the land in section 11, by Cisco, Hulsey, and Sapaugh, under the permission of Ball, was open, notorious, and exclusive. It was admitted by the plaintiffs in the trial that neither they nor their ancestor had paid any taxes on the lands for 30 years. It was proven they never had been in the possession of the lands, and that since the date of the tax sale the Nova Scotia Iron Company and its successors in title had dis charged all of the taxes on the same and had been claiming the title thereto. After | sion of and holding said lands under said. the Nova Scotia Iron Company acquired it, all of the lands which they owned were treated and conveyed as one tract to the three stockholders and from them to the defendant, and the plaintiffs' ancestor and predecessors in title at no time conveyed the lands in any other way. The evidence for the plaintiffs tended to disprove adverse possession of the defendant for the requisite period of time to ripen into title. J. D. Gustin and Jackson C. Stanton, both of Kansas City, and R. L. Horsman, of Salem, for appellants. Wm. P. Elmer, of Salem, for respondent. WOODSON, J. (after stating the facts as above). [1] I. The court, at the request of the plaintiffs, gave a number of instructions which need not be questioned and need not be considered, as they are binding upon them, whether they correctly declare the law or not. [2] Counsel for plaintiffs requested the court to instruct the jury that in passing upon good faith of the defendant, and those through whom it claims, in taking possession of the land that they should take into consideration all of the facts and circumstances in the case, including the purpose for which the land was required, the length of time for which said possession was claimed, the character and nature of the improvements, if any, the purposes for which the land was used, the extent of the cultivated land compared with the amount of tillable land in the whole tract, etc. This instruction was by the court refused, to which action of the court the plaintiffs duly excepted. If error, that action of the court was not reversible error, for the reason that there was no evidence introduced at the trial which tended to show that the defendant and those through whom it claims did not enter into the possession of the premises in good faith. While that fact was not expressly admitted, yet the uncontradicted evidence conclusively shows that this land, with many more thousands of acres, were purchased for the purpose of furnishing a site for a large and expensive iron furnace, as well as the necessary fuel for its operation. That in pursuance to that design, the furnace and many buildings -stores and residences-were constructed at a large outlay of money, labor, and materials, and that the same was operated for 4 years in the manufacture of pig iron, and that the timber on several thousand acres of the land was cut therefrom for fuel for said furnace. It was also practically conceded that the land was not fit for agricultural purposes, save about 40 acres, and that its chief value consisted of the timber growing upon it. [3] There is nothing in that evidence remotely indicating the lack of good faith on the part of the defendant in taking posses deeds; but upon the contrary, it strongly tends to show the best of faith upon their part. Good faith means "honesty, without fraud or deceit." Words and Phrases, vol. 4, p. 3117, and "lawful possession" means entering upon and holding land and claiming to be the owner, and not as an intruder or trespasser. Collins v. Pease, 146 Mo. 135, 47 S. W. 925; Abeles v. Pillman, 261 Mo. 359, 168 S. W. loc. cit. 1184. [4] Moreover, it is undisputed that the deof these lands under color of title derived fendant and its predecessors took possession through the tax deeds before mentioned, and under those facts the question of good faith is immaterial. Bradley v. West, 60 Mo. 33; Wilkerson v. Eilers, 114 Mo. 245, 21 S. W. 514. This point is decided against the plaintiffs. [5] II. The plaintiffs also requested the court to instruct the jury: "That under the claim of color of title to the entire premises, if accompanied by the exercise of the usual acts of ownership over the unoccuwhole tract claimed, yet such possession of the pied portions, amounts to the possession of the occupied portion must be so strict and definite in character and the acts of ownership so customary and usual, as to amount to a public notice of claim of title. And that if you believe that the land was susceptible of a more strict and definite possession than that claimed by the defendant, or that defendant's acts of ownloose, uncertain, and indefinite as to not amount ership, over the unoccupied portion, were so to public notice of its claim of title, your verdict should be for the plaintiffs." Un The language of this instruction is highly misleading, and imposes a higher degree of occupancy upon the claimant than the law requires, and the court, for those reasons, properly refused to give it to the jury. der the 10-year statute of limitations all the law requires is that the possession of the claimant shall be taken and continued in good faith, which must be exclusive, open, and notorious, adverse to the world, and continuous for a period of 10 years or more prior to the date of the institution of the suit, by the owner of the title, to recover the possession from the former. The vice of this instruction consists in declarations of law regarding the "strict and definite character of the acts of ownership" imposed by the law upon the defendant, amounting to "public notice of its claim of title," and that if the jury find, "that the land sued for in this case was susceptible of a more strict and definite possession than that claimed by the defendant," etc., then they should find for the plaintiffs. This instruction simply means that before a person can acquire title to real estate by adverse possession, his occupancy thereof or his acts of ownership exercised over it must be as complete or perfect as the character of the land will permit. No such requirement is made by the law, nor have I ever seen a case so holding. Such a possession would be not only impracticable, but so ex pensive and arduous that title to lands could never be acquired by adverse possession. That instruction was properly refused. [6, 7] III. In connection with the previous question, counsel for plaintiffs complain of the action of the court in permitting Scott to testify regarding the good faith of the defendant and its predecessors in taking possession of the land. session of the whole, and such possession will ripen into title under the statute of limitations. Section 1882, R. S. Mo. 1909; Heinemann v. Bennett, 144 Mo. 113, 45 S. W. 1092; Herbst v. Merrifield, 133 Mo. 267, 34 S. W. 571; Stevens v. Martin, 168 Mo. 407, 68 S. W. 347; Brown v. Hartford, 173 Mo. 183, 73 S. W. 140; Thompson v. Stilwell, 253 Mo. 89, 161 S. W. 681. [11] V. It is finally insisted that the evidence did not make out a case for the defendant under the 30-year statute of limitations. We cannot lend our concurrence to This testimony, if erroneously admitted, did not constitute reversible error, for the reason that it was given in connection with his testimony as to the character of the furnace constructed, the number and charac-that proposition. The evidence tended to ter of the stores, buildings, dwellings, and other houses erected in connection therewith, and their cost, about $200,000, as well as the total number of acres of land purchased in that vicinity, etc. This testimony, which consisted of a single question and answer, and when read in connection with its context, makes it perfectly apparent he was not trying to give his own opinion as to the good faith of the defendant, and its predecessors in taking possession of his land, but simply stating what he thought the facts stated tended to show in that regard, and as there was no evidence to the contrary, no harm was thereby done the plaintiffs. Besides that, where the question of good faith is involved in a case of this character, that fact may be shown by direct testimony, as well as by inference from the facts and circumstances in the case. Ency. of Evidence, vol. 7, p. 96; Abeles v. Pillman, 261 Mo. 359, 168 S. W. 1181. [8-10] IV. Plaintiffs' fourth refused instruction told the jury: "That while possession of land may be maintained by a tenant, such possession can extend no further than the terms of the lease or contract by which the tenant holds." show that neither the plaintiffs nor those under whom they claim title had been in actual possession of the land or had paid any taxes thereon at any time within 30 years prior to the date of the institution of this suit, nor within 1 year thereafter; that the title had issued from the United States more than 30 years prior to the institution of this suit; that the plaintiffs failed to bring their action within the 31 years after leaving the possession of the land; and that the defendant and those through whom it claims have been in the possession ever since, claiming title thereto under color of the tax deeds before mentioned. This evidence brings the case squarely within the provisions of section 1884, R. S. 1909, known as the 30-year statute of limitations, and as construed by this court in the cases of Abeles v. Pillman, 261 Mo. 359, 168 S. W. 1180; Campbell v. Greer, 209 Mo. 199, 108 S. W. 54. Finding no reversible error in the record, the judgment of the circuit is affirmed. All concur; BOND, J., in paragraph 5 and result. KANSAS CITY, C. C. & ST. J. RY. CO. v. 1. (Supreme Court of Missouri, Division No. 1. June 2, 1916.) CONDEMNA This instruction correctly announces a correct abstract proposition of law, but it is misleading in this case; first, because the evidence tended to show that the tenants of the defendant, or at least some of them, in addition to having possession of definite EMINENT DOMAIN 222 (2) tracts of land, were also the agents or superTION PROCEEDINGS-DAMAGES-INSTRUCTION. intendents of the defendant in caring for In condemnation cases, it is proper for the and keeping trespassers off the remainder court to direct the attention of the jury to facts in evidence, which, if proven, may, in their opinof its lands; and, second, because the evi-ion, affect the market value of the land, and dence tended to show that the land in dispute constituted one tract, and had always been so treated by all of the parties to this suit. All of it had been embraced in one deed in every conveyance made, except one. A tract of land is defined to be "a contiguous body of land embraced in one deed." Words and Phrases, vol. 8, p. 7036; Gaines v. Saunders, 87 Mo. loc. cit. 563; Rannels v. Rannels, 52 Mo. 108; Hughes v. Isreal, 73 Mo. 538. The law is well settled that the possession of a part of a tract of land with a claim of the whole, with the usual acts of ownership over the entire tract, establishes pos to direct them that such evidence is proper for 2. EMINENT DOMAIN 222(5)—PROCEEDINGS -DAMAGES INSTRUCTION. In a railroad's statutory condemnation suit it was error to instruct that in estimating damages the jury would consider the quality, quantity, and value of the land taken, and also the der of the farm not taken as a right of way by damage and depreciation in value of the remainreason of the railroad's running through it, continuing that they would also consider the size and shape of the two tracts into which the farm was divided. the cuts and fills upon the same, the inconvenience in getting water, etc., and any other fact or facts which they believed would For other cases see saine topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 596, 612; Dec. Dig. 252(1).] 4. EMINENT DOMAIN 222(5)—PROCEEDINGS -DAMAGES-INSTRUCTION. [erating lines of railroad from Ka stated. The land with respect to which th ages were awarded is a stock farm acres, 480 acres of which consists of quarter sections lying side by side, exte. a mile and a half east and west, and th maining 100 acres consists of the north of two quarter sections lying south of two west quarters first mentioned. Defe ants' farm buildings are located at the sou 222(5)-PROCEEDINGS line of the middle quarter section some littl An instruction requiring the jury to estimate the damage occurring, by reason of a change in the plan on which the commissioners made their report and assessment, between December, 1911, and October, 1912, which could only be done by estimating the amount of damage as the conditions existed at the former period, was erroneous. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 566; Dec. Dig. 222(5).] 5. EMINENT DOMAIN -DAMAGES-INSTRUCTION. An instruction requiring the jury to separately estimate as a special injury the difference in conditions between December, 1911, and October, 1912, an interval in which the plan on which the commissioners made their report and assessment was changed, was erroneous. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 566; Dec. Dig. 222(5).1 6. EMINENT DOMAIN 203(1)-ProceeDINGS -DAMAGES-MATTER FOR JURY. The assessment and report of the commissioners were not proper matter for the jury's consideration in assessing damages. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 542; Dec. Dig. 203(1).] 7. EMINENT DOMAIN 150-DAMAGES-EXCESSIVE VERDICT. distance east from a public road extending north and south, approximately dividing the middle quarter section and the half quarter south of it into equal parts, and west of the railroad, which enters the farm across the northeast corner of the east of the two 80's, close to the southwest corner of the east quarter section, and runs northwesterly and in a straight line diagonally across the public road, leaving the farm at the north line, and leaving approximately 50 acres of the quarter and 210 acres of the farm east of the right of way, which amounts to 6.38 acres. The land along the right of way is uneven, so that the construction consists mostly of cuts and fills. The deepest cut is 16 feet on one side and 14 feet on the other, while the highest fill or embankment is 261⁄2 feet. The defendants ordinarily feed upon the place about 250 head of cattle each year. The feed lots are east of the railroad and public road, where there is a spring which furnishes an abundance of water for Condemnation suit by the Kansas City, the stock. The cultivated land and the Clay County & St. Joseph Railway Company most of the pasture is on the west side of against Joseph W. Couch and others. From the railroad, where there is a stream which the award of damages to defendants, plain- furnishes water part of the year and fails tiff appeals. Reversed, and cause remanded. in a dry time. The spring and the stream Bowersock, Hall & Hook and Beardsley provide the only surface waters on the farm. & Beardsley, all of Kansas City, for appelThe testimony as to the value of the land lant. Francis M. Wilson, of Kansas City, Charles Lyons, of Lexington, James P. Chinn, of Higginsville, and Carl L. Ristine, of Lexington, for respondents. Where the evidence as to the damage from the taking and from injury to the remaining land extended from less than $500 to more than $26,000, verdict for $9,674.34 was not so excessive as to authorize interference by the Supreme Court. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 402; Dec. Dig. 150.] Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge. BROWN, C. This is a statutory condemnation suit to appropriate land for the construction and operation of plaintiff's railroad. The suit was instituted in Platte county, where the land is situated, and was removed by change of venue to Lafayette county, where it was tried and resulted in the verdict and judgment for $9,674.34, from which this appeal is taken, The plaintiff is a railroad corporation organized and incorporated under the general laws of the state of Missouri for the purpose of constructing, maintaining, and op taken ranged from $75 to $200 per acre, while the testimony with reference to the damage to the remainder of the farm covered the latitude lying between nothing and $40 per acre. The giving of certain instructions is assigned as error. We will notice these as they require consideration in the opinion. It is also assigned for error that the verdict is so clearly excessive that it ought not to be permitted by this court to stand. [1, 2] 1. Defendant's seventh instruction, of which the appellant complains, opens with the following proposition: "The court instructs the jury that, in estimating the damages in controversy, you will take into consideration the quality, quantity, and value of the land taken by the railway company for a right of way, and also the damage and de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |