Blaske v. Wehmeyer , 285 Mo. 524 ( 1920 )

WILLIAMS, P. J.

This is an action under Section 2535, Revised Statutes 1909, to determine title to land situated in Gasconade County, Missouri. Trial was had in the Circuit Court of Gasconade County before a jury, resulting in a verdict and judgment in favor of plaintiff. Defendant has duly appealed.

Plaintiff’s petition alleges that he is the owner of a certain island in the Missouri River known as Robert Miller Island, as surveyed and patented by the County of Gasconade, on November 28, 1903, to Ransome A. Bruer and J. W. Hensley, including all accretions to said island; that said island when surveyed and patented embraced certain portions of land in Section 31 and Section 32, all in Township 46, Range 6, west. The petition further alleges the amount of acreage in each portion of said sections wherein said island was located. It should be noted here that the petition does not allege that any’- of said island is located in Section 6, Township 45, Range 6, west (which said Section 6, as shown by the evidence, adjoins and is immediately south of said Section 31. It would appear from the evidence that the .land in dispute is in Section 6).

Defendant, Christ Wehmeyer, filed a separate answer (originally there were other defendants, but plain-tiff dismissed as to .them during the trial), in which said answer defendant denied the allegations of the petition, except to allege that he claimed title to the following described land in Gasconade County, to-wit:

“Part of the northwest quarter of Section 6, Township 45, Range 6, west, more particularly described as follows, to wit: Commencing 6.25 chains east of the northwest corner of Section 6, Township 45, Range 6, west; thence running east 20.25 chains; thence south twenty-nine chains, to the center of Shawnee Creek; thence east along said Shawnee Creek up the Bailey’s Creek, thence in southwestern direction along said bank of Bailey’s Creek to the center line of Section 6; thence west 21.25 chains along said center line of Section 6 (running east and west) to an iron rail piece; thence north 41.04 chains to the place of beginning, containing* in all eighty-nine acres, more or less.”

It will be noted that the last above described tract of land lies in Section 6, which, as above stated, lies adjoining and immediately south of Section 31 described in plaintiff’s petition.

' The jury returned the following, verdict (formal parts omitted): “We the jury find the issues in favor of the plaintiff.”

Upon this verdict the court eptered a judgment, in part, as follows: ' “It Ts adjudged and decreed by the court that the parcel of land located north of the middle of the certain slough, in the Missouri River, next to the high bank, and located between lines running north and south, respectively, 6.25 and 26.50 chains east of the range line on the west side of Range 6, west, in Uaséonade County, Missouri, is a part of a certain island in the Missouri 'River, known as Robert Miller Island, and that plaintiff is the owner thereof, and that his title thereto is a fee-simple estate, and that defendant Christ Wehmeyer has no right, title or interest in-said land.”

We have encountered much difficulty in interpreting the record before us, due in part to the fact that witnesses have not been accurate in their expression; the word “slough” has been used many times in the record, and it has been difficult at times to ascertain which particular slough was meant; furthermore, some of the witnesses were examined with reference to certain photographs marked “Exhibits A” and “B,”.but these photographs do not appear in the record and do not appear to have been introduced in the evidence. Further complications arise from the fact that defendant offered in evidence “Exhibit Number 2” which purports to be a survey of Miller Island. When witnesses were examined concerning this exhibit reference is made to certain blue, yellow and black lines. The copy of the exhibit brought here shows only black lines. We have read the record twice in an attempt to learn the material facts, and will state below the result of that labor.

It appears that the original G-ovemment survey did not show an island located in the Missouri River at the point where Robert Miller Island is located. The island formed sometime prior to 1903, and for seven or eight years prior to that time one Robert Miller lived on this is] and and cultivated about fifty acres of land. In June of 1903 there was a great flood in the Missouri River, which washed away the house in which Miller lived and a greater portion of the island. Miller then moved from the island.

In September, 1903, the County Court of Grasconade County caused Robert Miller Island to be located, surveyed and platted as lands belonging to Grasconade County, for the use of the public schools under the Act of the Legislature of Missouri of 1895. This survey was completed and by proper steps Miller Island was patented by Grasconade County and sold, and the title thereto has by mesne conveyances passed to the plaintiff.

The survey which was made by the county surveyor was offered in evidence by the plaintiff and said survey shows all of Robert Miller Island lying within Sections 31 and 32 mentioned in the petition.

At the time this island was surveyed defendant owned the land described in his answer, which land was in Section 6 adjoining and immediately south of said Section 31. At that time defendant’s land vas separated from Robert Miller Island by a large slough. Subsequently to 1903 and at different times portions of the north side of said island vashed away and accretions formed on the south side of said island. The extent-and location of these accretions on the south side of the island are not definitely given in the testimony. The nearest approach thereto is found in the testimony .of Robert Miller, wherein the following question and answer appears:

“Q. What is the formation of this island; are there any sloughs or cuts through it? A. There is no slough between the north bank of the island and the slongh next to the high bank as shown by this picture.”

One witness said: “It [the island] kept moving around, working south all the time; . . . cut the bank away; it cut away from the north and growed south.”

The following question and answer appears in the testimony of Mr.' Gillsaw:

“Q. When the river gets up high that there is. a stream of water between the island and the main land, where does the stream of water flow? A. Right around the high bank next to Wehmeyer’s.”

Mr. George Miller testified that for several years past “the only deep slough has been next to the main bank on the south side.” It further appears that there was a high bank on the south side of this slough, which slough plaintiff claims separated the island from the main land. Plaintiff’s witnesses testified that there was now no slough dividing the island; that at one time a slough did run through the island, but that it had practically filled up, and the only remaining slough was the one which now formed the southern boundary of the island.

The evidence upon the part of the defendant tends to establish the following facts:

Defendant purchased the land described in his answer and received a deed therefor in 1882. At that time there were two 40-acre tracts between his northern boundary and the river bank. Afterwards these two 40-acre tracts and 30 or 40 acres of the.northern portion of this tract were washed away by high water. Defendant testified that he had been in possession of the land described in his answer ever since the purchase thereof, and it appeárs to be his theory that the land described in the judgment came back to. him by accretion to his land which did not wash away. But the evidence on this point is not very clear. One of defendant’s witnesses testified that a new island formed in the river between Robert Miller Island and the south bank of the river. The defendant’s evidence also tended to show that Miller Island at one time completely washed away. Reference to further testimony will he made in the course of the opinion.

I. During the direct examination of plaintiff the following occurred-:

“Q. How far the Robert Miller Island extends? A. It ain’t there now no more, only the lower comer, and a little on the upper corner.

“Q. Does it go only to where ’Wehmever claims or to the slough, or where does it go? A. I think I bought it clear over the slough.

“Mb. Schafer: I move to strike out what he thought he bought, on the ground that his answer is a mere opinion.

“Mb. Walker: Does that belong to the island over to the slough? A. It ought to belong to the island.

“Mb. Schafer: I move that be stricken out on the ground it is not for the witness to determine what ought to belong to the island.

“The Court: That part may be stricken out, but the part he said he bought over to the slough may stay in.

“Mr. Meyer: If the court please, the answer was a peculiar one; he said he thought he bought all the island, to the Morrison side; that is a mere opinion and that ought to be striken out, what he thought he bought; that was his answer.

“The Court: I think that is all a man could say; let it stay in. I don’t think that makes any difference; how could a man know what he bought; he thought he bought it; whether he did or not, that is a question for the jury; the deed tells what he bought.

“To which ruling of the court the defendant, by counsel, then and there duly excepted.”

Appellant assigns the foregoing as error. We are of the opinion that the assignment is well taken.

One of the contested issues in the case was how far southward Robert Miller Island extended by accretion. What the plaintiff thought about the matter was not a statement of a fact, but a mere opinion. It was wholly incompetent for any purpose, and should have been stricken out on appellant’s motion. What the plaintiff thought maj^ have and no doubt did influence the jury in arriving at their verdict.

„ XlluCOlplSi II. Appellant further contends that the court erred in permitting plaintiff, over the objection and exception of appellant, to testify that his tax receipts ¶ - - _ 4 _ showed that he had paid taxes on 200 or 260 acres of land on this island. Appellant contended at the trial and here that the tax receipts would be the best evidence, and furthermore the evidence should show upon what exact land the taxes were paid. We think this position is well taken. Unless it should appear that the land in dispute was a portion of the land upon which taxes were paid, the payment of taxes would be wholly immaterial to the' issues of this suit. If on the other hand plaintiff had paid taxes on the land in suit and desired to show that fact as a circumstance indicating the nature of his possession or of his claim in said land, the best evidence showing that fact (the written evidence) should have been offered when objection was made unless proper foundation was laid for the introduction, of’ secondary evidence.

instructions III. Appellant further contends that the evidence does not support the judgment, and that the instructions are erroneous in that they are not based upon the land described in the petition. Since the ease must be retried we deem it inadvisable to undertake to pass upon the sufficiency of the confusing record now before us. We might be permitted to say in passing, however, that it is undoubtedly the better and safer practice that the land in dispute should be accurately described in the petition, and the description in the instructions, verdict and judgment should fall within the description thus set forth in the pleadings.

Furthermore when a survey or plat used in evidence has lines of different colors to which reference is made in the testimony, the abstract should definitely show in some manner the color of the respective lines in order that an intelligent understanding may be had-of the facts. It is to be presumed that all these matters will be obviated upon a retrial and hence we will forego further discussion now.

The judgment is reversed and the cause remanded.

All concur.