text:
    HARRIET B. BARNES, Appellant, v. JACOB IMHOFF.
    Division One,
    December 23, 1911.
    This canse is decided upon the authority of the case of Butler v. Imhoff, reported at page 584 of this Report.
    Appeal from Bollinger Circuit Court.—Eon. Charles A. Killian,- Judge.
    Reversed and remanded.

      Russell & Deal for appellant.

      Wilson Cramer for respondent.
   BROWN, C.

The facts in this case are identical with those shown by the record in Butler v. Imhoff, ante, p. 584, with the exception that in this case the land in controversy was misdescribed in the first notice of sheriff’s sale. Both cases were submitted together, and as, under the view we have taken and expressed in our opinion in the other case, the difference stated could not affect the result, the judgment of the circuit court in this case will he reversed and the case remanded.

Bond, J., concurs.

PER CURIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    BROOKLINE CANNING & PACKING COMPANY v. J. B. EVANS, Appellant.
    Division One,
    December 23, 1911.
    1. APPELLATE JURISDICTION: Constitutional Question. Raising a constitutional question is not a mere matter of form. The question must really exist, and if it does not in fact exist it is not raised. If a determination of every issue raised by the pleadings and evidence does not involve a consideration of any clause of the Constitution, although the defendant assigns in ■his motion for a new trial that to permit the judgment for one hundred dollars against him to stand would be to deprive him of his property without due process of law,, the Supreme Court had no jurisdiction of the appeal.
    2. -: -: Jurisdiction of Justice of Peace: Equity: Suit to Compel Stockholder to Pay for Stock. A suit by a corporation to compel a stockholder to pay the balance due on his subscription to the stock of a corporation held by him, is not a suit in equity, but an action at law, and the amount sued for being only one hundred dollars the proper justice of the peace has jurisdiction to try the case. But even if it were a suit in equity, and the circuit court, upon an appeal to it and a trial de novo, should hold it to be an action at law, the holding would only be an error of law, and the result an erroneous judgment, which could be corrected on appeal to the proper appellate court, and would in no sense be to deprive the defendant of his property without due process of law.
    3. -:-: Suit to Compel Stockholder to Pay for Stock: Held as Security for Debt. Where the defense to the suit for one hundred dollars claimed to be due from defendant for unpaid stock of a corporation held by him, is that he held the stock only as security for a debt, an adverse holding by the trial court amounts either to a finding that he did not believe the-witnesses on this point or did not consider the fact sufficient to constitute a defense, and if either holding was a mistaken one it was simply error, and involved no constitutional point.
    4. -: -: -Where Corporation was a Bankrupt. Where the plaintiff corporation, which sued a stockholder for an unpaid subscription for stock held by him, had previously been adjudged bankrupt, and its affairs had been administered by a trustee until all its debts had been paid and a small amount returned to the secretary, a holding by the trial court that the corporation was not,, for those reasons, precluded from suing the delinquent stockholders for the several amounts due on their stocks, involved no cohstitutional question. If the holding was wrong, it was only error.
    Appeal from Greene Circuit Court.—Hon. James T>. Neville, Judge.
    Transferred to Springfield Court of Appeals.

      Henry G. Young for appellant.

      J. J. Gideon, G. D. Kirby and J. G. West for respondent.
   VALLIANT, J.

This is an appeal from a judgment for $100 rendered in favor of the plaintiff in the Greene Circuit Court. The suit was begun in a justice’s court, judgment for plaintiff there for $100, appeal by the defendant to the circuit court, trial de novo there and judgment for plaintiff against defendant and the surety on his bond for $100; from which judgment the defendant has taken this appeal.

Since the appellant’s main insistence is that this is a suit in equity, therefore the justice had no jurisdiction and the circuit court by appeal acquired no jurisdiction, we deem it proper to copy the original petition or statement of the cause of action filed in the justice’s court which is as follows:

STATE OF MISSOURI,
County of Greene,
Before C. A. Hubbard, Justice of the Peace,
Campbell Township.
Brookline Canning & Packing Co. v. J. B. Evans.
Plaintiff for its cause of action states that it is a corporation duly organized and existing under the laws of the State of Missouri; that on or about the 27th day of January, 1903, the defendant purchased of the then owner, six shares of the capital stock of the plaintiff of the face value of $400.00, and there was still unpaid on said stock at the time plaintiff so purchased it fifty per cent thereof, or $200; that defendant well knew this fact at the time he purchased said stock; that defendant has since said purchase paid on the balance due on said stock $100; that there is still due on said balance $100; that the defendant is now the owner of said stock; that this plaintiff has by resolution of the board of directors duly made a call for the unpaid portion of said sum due on said stock and defendant has received due notice thereof, but has failed and refused to pay said sum or any part thereof to this plaintiff; that the said sum of $100 is now due plaintiff and unpaid, wherefore plaintiff prays for judgment for said sum, to-wit, $100, together with the costs of this suit.

No answer or other pleading on the part of defendant was filed.

When the canse came on for trial in the circuit court defendant “objected to the introduction of any evidence in the case, for the reason that the statement filed in the cause before the justice failed to state facts sufficient to constitute any cause of action whatever; also for the reason that this court has no jurisdiction of the subject-matter of the action sought to be adjudicated and determined; for the reason that the plaintiff herein had no capacity at that time to sue and the plaintiff is not the real party in interest.” The objection was overruled and exception taken.

On the trial plaintiff introduced evidence tending to, prove the cause of action stated in the petition, and rested.

On cross-examination of one of plaintiff’s witnesses, who was the secretary of the corporation, the defendant proved the following facts:

Some time before this suit was brought, proceedings in bankruptcy had been instituted and the corporation adjudged a bankrupt; a trustee in bankruptcy was appointed, who took charge of the affairs of the corporation; under his administration the debts of the corporation were all paid and a balance of $32.87 was turned back to the secretary of the company. During the bankruptcy proceedings, on a call of the trustee, several of the stockholders paid in small sums on account of balances due the corporation on their stock-holdings ; among these the defendant paid $100, which reduced his unpaid balance to $100, the amount sued for. But it seems that some of the stockholders had paid all their subscriptions and others had paid in different proportions. After the trustee in bankruptcy had closed his administration and turned back the balance above mentioned to the secretary of the company, the officers of the company called a meeting of the board of directors, and that board called a meeting of the stockholders, and at that meeting it was resolved that steps should be taken to collect from the delinquent stockholders the balances due from them respectively on their stock, to the end that the burden should be equalized, and it was resolved that an attorney should be employed to collect the amounts, by suit, if necessary. After that a meeting of the board of directors was held, at which a committee was appointed and authorized to employ an attorney for that purpose. Appellant contends that the record does not show that the notices for those meetings stated the purpose for which they were called; we express no opinion on that point.

Defendant as a witness in his own behalf testified to some facts which were intended to show that he did not really own the stock, but held it only as security for a debt; whether the testimony on that point really tended to so prove we have nothing to say.

At tlxe close of all the evidence the defendant asked the court to declare the law to he that if this-action was instituted for the mere purpose of enforcing contribution from defendant in favor of other stockholders who claim to have paid more than their pro rata of their respective subscriptions to the capital stock of the plaintiff company, then the justice' of the peace had no jurisdiction and the circuit court acquired none by appeal, and that should the court proceed to try the action the court would deprive the defendant of the equal protection of the law, and take his property withoixt due process of law, contrary to the Constitution of Missouri and the 14th Amendment. The court refused the instructions asked. The same point was made in defendant’s motion for a new trial.

In the foregoing statement we have not intended to set out more of the evidence than will serve to illustrate appellant’s alleged constitutional points; whether he has made good any or all of his points of defense we will leave to he decided by another appellate court. He comes to this court claiming that his constitutional rights have been violated. If he has succeeded in bringing his case within the jurisdiction of this court on the idea that a constitutional question is involved, then á constitutional question may he formulated in any case.

Appellant’s contention is that this is a suit in equity, therefore not within the jurisdiction of a justice of the peace, nor of the circuit court on appeal from a justice’s judgment, and the judgment so rendered deprives appellant of his property without due process of law and denies him equal protection of the law. ■

Appellant is mistaken in the character of the suit; it is simply an action ¿t law, was tried as such, and judgment rendered as such. Even if appellant is right in his contention that under the circumstances disclosed by the evidence he is accountable only in a suit in equity (as to which we express no opinion) that would not convert this into a suit in equity, it would only go to show that the plaintiff should not recover in this action; if appellant is correct, the judgment is erroneous. The justice had jurisdiction of the case stated-in the petition, and the testimony on the part of the plaintiff was sufficient, if credited and not overcome, to justify a judgment responsive to the cause of action stated in the petition. A man has no right to say that he is deprived of his property without due process of law simply because the court in a case of which it has jurisdiction has rendered a judgment which he thinks is wrong.

There is no pretense but that there was $100 due the corporation on the stock held by appellant, but he offered evidence which he thought tended to show that he held the stock only as security for a debt; the trial court either did not believe this evidence or did not consider the fact sufficient to constitute a defense; if the court was wrong in that, it was error, but there was no constitutional point involved.

Defendant also introduced evidence to show that the plaintiff corporation had been adjudged a bankrupt, and its affairs had been administered by a' trustee until all its debts had been paid and a small balance returned to its secretary, and after that the corporation took steps to collect balances due from stockholders on their stock subscriptions, and that the purpose of those suits was to put the corporation in possession. of funds 'whereby it could equalize the burden among its stockholders. The trial court thought that the corporation was not, for those reasons, precluded from suing its delinquent shareholders for the several amounts due on their stock; if wrong in that it was error, but its consideration involves no constitutional question.

The-points of defense raised at the trial and discussed in appellant’s briefs can all be considered and adjudged without any reference to the Constitution; they call for no interpretation of any clause of'.the Constitution. Raising a constitutional question is not a mere matter of form; the question must really exist and if it does not exist it is not raised. A judgment may be erroneous, yet rendered in due process of law. There is no constitutional question in this case. The cause is transferred to the Springfield Court of Appeals.

All concur.


author: BROWN, C. PER CURIAM.

text:
    THE STATE ex inf. L. L. COLLINS, Prosecuting Attorney of Pemiscot County, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division One,
    December 23, 1911.
    1. STATUTORY CONSTRUCTION: Penalty: Sec. 1075, R. S. 1899. Section 1075, R. S. 1899, requiring railroad corporations to provide depots at their intersection at grade with other railroad's, is purely penal and is to be strictly construed; i. e., it is not to be regarded as including anything that is not clearly and inteliigibly described in the words of the statute, as well as manifestly intended by the Legislature.
    2. -: -: -: Conditions: Judicial Notice. The court will take judicial notice that there are conditions coming within the letter of Sec. 1075, R. S. 1899, that are clearly not witfcin its spirit, and consequently not within its scope; e. g., that a railroad need not build a depot at every crossing where it enters a great railway terminal point.
    3. -: -: -: -: -: Evils to be Corrected. The court in construing See. 1075, R. S. 1899, takes judicial notice of the coiiditions in railway affairs to which it is to be applied, and which its remedial provisions are designed to correct.
    4. RAILROADS: Statutory Construction: Sec. 1075, R. S. 1899: Crossings: Other Roads. Section 1075, R. S. 1899, does not require a railroad corporation to maintain a depot at each railroad crossing on its lines, but the duty is confined to the crossings of other railroads on which separate trains are run. In this case appellant’s east-and-west line was crossed at Pascóla by a north-and-south spur, also owned by appellant, and the lines were there connected by a Y-track. Appellant maintained a depot at Pascóla which was situated 400 feet from the crossing. During the time covered by this case there was no separate train service on the north-and-south spur, but a train running on the east-and-west line stopped each day at Pascóla and turned aside to go on alternate days to one end of the spur and back before continuing its run eastward. Held, that the Pascóla crossing was not such a crossing as was contemplated by Sec. 1075, R. S. 1899.
    WOODSON, J., dissents from such language in the opinion as, in his judgment, indicates that the statute does not apply to railroads belonging to the same company.
    Appeal from Pemiscot Circuit Court.—Hon. Henry C. Riley, Judge.
    Reversed.

      W. F. Evans and E. T. Miller and Moses Whybarh for appellant.
    (1) The court erred in overruling defendant’s ■objection to the introduction of any evidence under the petition. The petition does not state facts sufficient to constitute a cause of action. Section 1075, which is a penal statute, applies only to the crossing or intersection of the lines of two railroad companies, not to the crossing or intersection of two lines of one railroad company. R. S. 1899, sec. 1075; R. S. 1899, sec. 1172; State ex rel. v. Railroad, 83 Mo. 144; State ex rel. v. Railroad, 105 Mo. App. 207; State ex inf. v. Tobacco Co., 177 Mo. 1; State v. Koock, 202 Mo. 223; State ex rel. v. Riley, 203 Mo. 175; State ex rel. v. Wilder, 206 Mo. 541; Lumber Co. v. Railroad, 216 Mo. 658; Mattison v. Hart, 14 C. B. 385. (2) Section 1075, under which this suit was brought, is a penal statute. State ex rel. v. Railroad, 105 Mo. App. 211; State to use v. Railroad, 83 Mo. 148.

      Ward é Collins for respondent.
   BROWN, C.

This is an action to recover the penalty prescribed in section 1075, Revised Statutes 1899, for an alleged violation of one of its provisions. The petition contained five hundred and six counts “consecutively covering each day from the first day of July, 1904, to the seventeenth day of November, 1905. Except as to the day charged, they are identical. Only the first count is set out, and the record is silent as to where the material for another count was obtained after the five hundred and five days of the period named had been utilized. Judgment was given for twenty-five dollars on each of the five hundred and six counts, aggregating the sum of twelve thousand six hundred and fifty dollars.

The first count of the petition, omitting formal parts, states that the defendant, a railroad corporation, “was on the 1st day of July, 1904, engaged in the transportation, for hire, of passengers and property on its line of railroad running from the city of Caruthersville, in Pemiscot county, Missouri, through said county to the city of Kennett, in Dunklin county, Missouri, and on its line of railroad running from the town of Deering, through said Pemiscot county, Missouri, to the town of Wardell, in Pemiscot county, Missouri; that the two said lines of railroad cross and intersect each other at the town of Pascóla, in Pemiscot county, Missouri; “that said defendant was on the 1st day of July, 1904, operating, managing, running both of said lines of railroad and engaged in the transportation of passengers and property on both of said lines of railroad; that the two said lines of railroad where they intersect and cross each other at said town of Pascóla, Missouri, were and are upon the same grade; that the character of the land at such crossing, intersection and junction of the two said lines of railroad at the places aforesaid will now and would on the 1st day of July, 1904, admit of erection, building .and maintaining of a depot, or passenger house or waiting room or rooms sufficient to comfortably accommodate all passengers awaiting the arrival and departure of trains at such junction, intersection and crossing of the railroads aforesaid; and that the defendant on the date aforesaid failed, neglected and refused to build and maintain at said junction, railroad crossing and intersection of the two lines of railroad as aforesaid at Pascóla, Pemiscot county, Missouri, as aforesaid, as a railroad corporation and company engaged in the transportation of passengers and property over the said line of railroad running from the city of Caruthersville, Missouri, to the said city of Kennett, Missouri, or as a -railroad corporation and company engaged in the transportation of passengers and property over the said railroad running from Deering, Missouri to War dell, Missouri, either jointly or separately for said lines of railroad, a depot, passenger house and waiting room or rooms sufficient to comfortably accommodate all passengers awaiting the arrival and departure of trains at such junction, railroad crossing and intersection aforesaid of the two lines of railroad aforesaid at Pascóla, Pemiscot county, Missouri.”

The facts so stated were put in issue by proper pleading, and at the trial the defendant objected to the introduction of any' evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. This objection was overruled by the court, and defendant excepted. The trial then proceeded and the following facts were developed and remain undisputed:

The defendant railroad company, on and before July 1, 1904, had a line of railroad called in the evidence the Caruthersville branch, extending from a junction at Kennett in Dunklin county, easterly about fourteen miles to Pascóla, in Pemiscot county, where the scene of this suit is laid, thence east about five miles to Hayti, a junction, thence easterly about seven miles to Caruthersville. In the spring of 1903* a branch had been constructed from the little village of Pascóla in a southerly direction about six miles to Deering, where there was a mill or two for the manufacture of lumber, and in the fall of that year this line Was extended so as to cross the Caruthersville branch at grade about four hundred feet west of its Pascóla station, and run north about six miles to Wardell, where there was also a lumber mill. Prom each end of this' line spurs extended to similar industries. The excuse for this "construction seems to have been the carriage of logs and sawed lumber, and such traffic as might be incident to such industries. During the time involved in this inquiry there has been no separate train service on the line between Deering and Warded, but the freight and passenger business was done by a mixed train which ran between Kennett and Hayti. At first it carried a combination baggage and passenger car. This did not prove strong enough to stand the usage it received and a caboose was substituted. Sometimes- the passengers had to be content with a box car, or even a flat car. The junction of the two branches was effected by a Y-track occupying 'the southwestern of the four angles formed by .the crossing, connecting with the line running in the direction of Kennett about thirteen hundred feet westerly from .the crossing, and with the line running to Deering about the same distance in a southerly direction. The depot was on the line extending toward Hayti, about four hundred feet easterly from the crossing. It has, since the beginning of this suit, been moved to the crossing. Prom four to six passenger trains per day passed Pascóla on the line between Kennett and Caruthersville. There is no depot building on the Wardell-Deering line other than that at Pascóla.

During the time covered by this suit there seems to have been no daily train service, either to Deering or Wardell. There was, during- the most of that time, tri-weekly service, operated about as follows: The Hayti local freight would leave Kennett in the morning; proceed to Pascóla; do its local work at that station; leave its train, except the Deering cars, on the side track; back up with the Deering cars to the west connection of the Y, and head to Deering. Having done its work there it would back out to the main line over the same course on which it headed in, pick up its train from the side track at Pascóla, and proceed to Hayti. It would there pick up its return train, and head through to Hayti. The next day the same train stopped at Pascóla, and its engine and crew did the Wardell business in the same manner that they had done the Deering business on the previous day, except that when it had finished its local business at Pascóla, and had headed in on the Y to the Deering track, it backed over the crossing which seems to be the bone of contention in this case, stopping at that point to take passengers, and then backed on to Wardell, heading back to the Y.

As to the running of these trains, W. D. Braeey, a witness for plaintiff, testified: ‘ ‘ The train generally runs from Pascóla to Deering one day and from Pascóla to Wardell the next. They don’t have time to make the round trip in one day. If they were going up to Wardell or down below they would stop at the. station, and stop as they came back. If they were going to Wardell they would stop where the station is now as they went west and take on passengers. Once in a while, when they would make a trip from Ha.yti and they would be going to Deering, the passengers would get on at the old depot and they would go on to' Deering. I don’t remember whether they ever made a straight through trip from Deering to Wardell and back to Pascóla since July 1, 1904.”

Sam Skinner, for plaintiff, testified: “In going-to Wardell they would not take passengers on at the depot; they took them on at the crossing; and if they were going to Deering they would take them on at the crossing. Sometimes going to Deering they would get on at the depot, and sometimes they would get on at the- crossing, but in going to Wardell they would get on at the crossing all the time.”

Mr. J. H. Powell, for respondent, said: “People going from Pascóla to Wardell got on the train everywhere, they got on at the crossing. . . There is lots of time they would go down, to Deering, and of course the passengers would , get on at this depot, and sometimes they would back up to the crossing, and they would come down and get on at the crossing.”

Squire A. Russell, for plaintiff, testified that he-had seen passengers at Pascóla come out to the crossing and wait when the local was coming around the Y.,

The plaintiff also introduced evidence tending to-show that the land at the crossing was suitable for a. depot building, and that the depot building had in fact been moved to that place at the time of the trial, but no attempt was made to show the character of the-site at either of the junctions of the Y, which constituted the only connection between the two lines.

The court found that the defendant’s trains on the Deering-Wardell line made regular stops at the crossing and that a depot or passenger house at that point “would have been of great public utility, comfort and benefit to all passengers traveling over both of said lines of railroad.”

OPINION.

The primary question in this case is whether or not, upon the undisputed facts, the defendant was. guilty of the violation charged in the petition of a penal provision of section 1075, Revised Statutes 1899, by maintaining its only “depot or passenger house and waiting room” at its station of Pascóla at a point about four hundred feet from a crossing of two of its tracks within the limits of the village, instead of maintaining it, or establishing another depot, at some point nearer to physical contact with the crossing.

The statute under which this suit is prosecuted, and by which it must be judged, provides that every railroad corporation engaged in the transportation of passengers or property, “shall, at all crossings and intersections of other railroads, where such other railroad and the railroad crossing the same are now or may hereafter be made upon the same grade, and the character of the land at such crossing or intersection will admit of the same, erect, build and maintain, either jointly with the railroad company whose road is crossed, or separately by each railroad company, a depot or passenger house and waiting room.”

The remedy provided for disobedience of this statutory mandate is not a compensatory one, by which a private injury is assumed and the recovery inures wholly or in part to the person or persons presumed to have. been injured. Each day during which the command is disobeyed carries with it its forfeiture to the public, equal in amount, although there may have been no one affected by such disobedience, or who could have received any benefit from obedience. The provision is purely penal, and is to be strictly construed. [State to use v. Railroad, 83 Mo. 144.] This means that it is not to be regarded as including anything not within its letter as well as its spirit; which is not clearly and intelligibly described in the words of the statute, as well as manifestly intended by the Legislature. [Endlich on the Interpretation of Statutes, section 329.] And as words are merely symbolic .of the things or conditions which call for their use, .•and to which they are applied, those things and coniditions necessarily constitute the foundation of statutory construction.

Even the modest repertoire of common knowledge which courts are permitted to have and use disguised under the name of judicial cognizance, informs us that there are many conditions coming within the letter of this enactment that are clearly not within its spirit, and consequently not within its scope. It may be that while on its way to a common passenger terminal, as in St. Louis, a road may cross line after line under the protection of interlocking switches and signals, its trains stopping- at the single station provided for a general interchange of traffic. In such case, and many others that could be mentioned, the maintenance of depots and waiting rooms at all the crossings, while they might possibly accommodate some belated traveler striving to make a connection for which there would not be time .to go into the union depot, or some denizen of the region immediately adjacent to the crossing, would retard the movement of traffic, and tend to defeat the great object which is sought to be attained in the development of this kind of transportation. In State v. Railroad, 32 Fed. 722, 724, the late Justice Brewer, referring to this same statute said:. “It was suggested on the argument that in some instances the tracks of two railroads cross and recross several times within the limits of a city in making their way to a union depot;-and it was asked, Why should a depot be required at each of those crossings? It may be that, under the statute, none is there required; for it has been often said that that which is not within the spirit, though within the letter, of the statute, is not within the statute, and it may well be that, construing this statute according to its spirit, it does not apply to cases of that kind. It may also be true that other circumstances may exist which in any given case will prevent the operation of the statute. This very cáse may, when the fact$ are fully disclosed, show a condition of affairs which will justify the court in holding the statute inapplicable.”

As we have already suggested, an important element in the construction of this and other statutes is the consideration'of the conditions to which it is to be applied, and which its remedial provisions are designed to correct. It is a matter of public notoriety that at the time of the enactment of this section there was an impression so general that it had begun to receive frequent legislative expression, that the railroad corporations did not come with alacrity to the performance of the duties ,to the public growing out of the nature of their franchises. It was asserted, among many other grounds of complaint, that they sought to exclude their 'patrons from the benefit they might otherwise obtain from lines which they had been permitted by law to cross, by refusing to afford facilities for interchange of freight and passenger business, or even to stop at such intersections. The effect of this policy is illustrated in Jacobson v. Railroad, 71 Minn. 519. In that case the Willmar and Sioux Falls Railroad extended from Willmar, Minnesota, southwesterly to Sioux Falls, South Dakota, and was crossed at nearly right angles near Hanley Falls, Minnesota, by the Wisconsin, Minnesota & Pacific Railroad on its way from Minneapolis to Watertown, South Dakota. The Will-mar road belongs to the Great Northern system which passes through large areas of timber available for fuel and fenceposts. The Wisconsin line occupies a prairie country, involving a long haul over its line for fuel and posts, while much cheaper timber could be furnished for both purposes to the people along its line by connecting with the Willmar line at Hanley. The prairie country also furnished a considerable supply of cattle, .of which the stockers and feeders found the market at Sioux City and through Sioux City to Omaha. If these cattle should be delivered to the Will-mar at Hanley Falls it could take them to Sioux City with a haul of 181 miles, while by the Wisconsin line the.haul was 380 miles, much of it directly away from the destination of the traffic. With cheap fencing and fuel and easy transportation for their stock at their doors, these people along the Wisconsin line were as effectually shut off from these advantages as if they had never existed, by the refusal of the road built to serve them, to make this connection until compelled by the enforcement, in the case cited, of a statute much like our own. Instances of this kind, affecting the carriage of both persons and property, became common, and the courts being slow to grant relief through the exercise of what many asserted to be their inherent jurisdiction, some of the State Legislatures came into the game, and by the enactment of laws similar in principle to the one now under consideration, sought to make these facilities real aids in the healthy development of the communities through which they extended rather than instruments of commercial isolation and the suppression of competition.

These observations with reference to the spirit which gave this statute birth and life, and the conditions to which it was intended to apply, lead us naturally to the question whether or not either or any of the tracks of the defendant, at the Pascóla crossing were, in relation to its other track or tracks at that place, another railroad within the meaning of this law during the time covered by the charges contained in the petition. The mandate is addressed to the “railroad corporation.” Its line of road is not, in this connection, mentioned or distinguished, so that the “corporation,” in the language of the statute, stands for the railroad which it owns. It is not commanded to build and maintain a depot at each railroad crossing on itg line or lines, but the duty is confined to the crossings of other railroads; and the requirement to construct and maintain the depot or depots' assumes a separate ownership of each line of track affected. These provisions at the very least assume that they refer to two roads, on each of which separate trains are .run, and that their object is to provide for a connection between such trains, and the convenient and comfortable transfer of traffic.

■ In this case there was no separate operation of two lines, nor was any separate train run on the track between Deering and Wardell. There was not even a depot building at either extremity or at any other place on it than Pascóla. During the entire time covered by the petition the local train from Kennett to Hayti, which necessarily ran past the Pascóla depot, stopped at that depot, did its -local work, and set out its cars on the side track, except the caboose and those going to Deering or Wardell as the case might be. If it was the Deering day the passengers for that place usually got on at the depot, the train backed over the crossing and about a quarter of a mile beyond to the Y connection, and then headed over the Y to Deering. When it came back with the cars from Deering it backed up to and over the Y to the main track, headed to the depot, discharged its passengers, picked up the cars it had left and the passengers for the east, and went on to Hayti. If it was the Wardell day the same course was pursued until the train with the War-dell cars reached the line running toward Deering. It then backed to the crossing, took on its passengers that had not got on at the depot before starting and such packages as were there for that purpose, and backed on to Wardell. It then headed back to Pascóla, switched around the Y to the main track, picked up its cars and passengers for the east and went on to Hayti. Sometimes passengers for Wardell would get on at the depot, but not often. If they did they would of course have to ride round the Y, nearly a mile, and come back to within about four hundred feet of their starting place. To avoid this, they walked down to the crossing, in time to take the train which stopped for them at that point.

Under these circumstances, the ownership -being identical, and the Deering-Wardell trackage being operated as two spurs, forming a part of the Kennett-Caruthersville line, and with the train running on that line, the Pascóla crossing was not during the' time covered by this suit such a crossing as was contemplated by the statute under which this suit was instituted. The judgment of the circuit court is accordingly reversed.

Blair, G., concurs.

PER CURIAM.

The foregoing opinion by Brown, C., is adopted as the opinion of the court.

All concur. Woodson, J., concurs in result only, and dissents from such language in the opinion as in his judgment indicates that the statute does not apply to railroads belonging to the same company.


text:
    ODON GUITAR, Jr., Executor, et al. v. WILLIAM S. ST. CLAIR, Appellant.
    Division One,
    December 23, 1911.
    1. PLATTING CITY PROPERTY: Vesting Title to Street: Plat to be Construed as a Whole. Under the statute (See. 10294, R. S. 1909) a recorded plat of a plot of ground within a city, has the effect to vest title to a street thereon in the city, the same as if it had been dedicated by deed. But a -plat, like a deed, must be construed as a whole. Parties claiming under a deed can take only what the deed in fact conveys; not what it may be surmised the grantor intended to convey. The plat is not to be taken to pieces. It is to be taken as a whole.
    2. -: -: -: Rights of City and Subsequent Purchasers. The rights of the city and of individuals, in so far as they áre derived from the plat, date from its filing; a purchaser of a lot after the plat is filed acquires a right to the streets and alleys in so far as they affect his property.

      3. -: -: -: Including Street Not Owned: Contribution from Lots. Where the owner of land platted it by lots, and made the lots include all the land she owned, and in addition made it include a twenty-foot strip she did not own as a street and the plat was approved and accepted by the city, and recorded, and lots were sold with reference thereto, the court cannot adjust the matter by reforming the plat to the extent of taking the twenty-foot strip from the lots of the purchasers. The owner had no right to dedicate the twenty-foot strip she did not own; she did-have a right to sell the lots she owned, as shown on the plat. If the city approves and accepts the plat, and lots are sold on the faith of it, the city’s right to what the plat gives is not superior in quality or prior in time to the rights of purchasers. In such case the dedication of the twenty-foot strip as a street fails, even though the owner of the lots supposed she owned the strip and was attempting to dedicate it as a street. And the court cannot - compel the purchasers of the lots to surrender twenty feet off of their lots to be used as a street.
    4. -: Monuments: Subdivision Line of Sections. A subdivision line in the center of a section is not a monument. It is not visible, and is ascertained only by measurement. A description in a plat calling for it as a boundary line does not take precedence over distances.
    5. -: -: .Center of Unextended Street. Nor is the center of the extension of a street called for as a boundary line of the land described in the plat, a fixed monument, and the rule of law does not require a description by distances to yield to it. But a street already constructed along the property, whose line is used as a starting point, is a fixed monument.
    Appeal from Boone Circuit Court.—if on. Nat M. Shelton, Special Judge.
    Reversed and remanded (with directions).

      W. M. Williams and Sebastian & Sebastian for appellant.
    (1) Mrs. Dysart could only lay out an addition to the city of Columbia to the ground owned by her. The statute expressly provides that the plat shall describe the lots by numbers “and their precise length and width.” She did not own the twenty feet as shown on the west side of the plat. The plat itself shows that the twenty feet is beyond her boundary. Defendant is not in possession of any part of said twenty feet. (2) The plat is, in legal effect under the statute, a conveyance to the city of Columbia of the ground marked thereon as a public street. The plat is to be construed the same as if a conveyance by the same description as contained in said plat had been made by Mrs. Dysart to the city of Columbia of the ground marked as an extension of Third street. (3) The plat must be construed according to the intention of the party «executing it, as gathered from the paper itself and the surrounding conditions. Missouri Inst. v. How., 27 Mo. 311. (4) The Guitar plat contains the northern extension of third ■ street and it is marked forty feet wide on the Guitar plat. At that time, there was an open way answering this description on the east side of the Guitar tract, and it remained open until about a year before this suit is brought. The Guitar plat amounts to a dedication of a street forty feet wide as the north extension of Third street and a conveyance of the tract of land shown thereon to be Third street in the city of Columbia. Hannibal v. Draper’s Heirs, 36 Mo. 332. (5) Defendant’s lots cannot be cut down to less than the length and width given on the .plat in order to take part of these lots for the extension of Third street. The plat must state the “precise length and width” of the lots. R. S. 1909, sec. 10290. The purchaser had the right to rely, upon the plat and to claim what the plat gave him. The plat does not show that any part of the lots claimed by him are portion of the extension of Third street. (6) Plaintiffs did not buy any of the lots in Dysart’s addition relying upon the plat, and can only have such rights as may accrue to them through the title of the city of Columbia. (7) Plaintiffs showed no such special damages as entitled them to institute this suit. It does not appear from the evidence that ingress or egress to and from their property is interfered with. The only testimony upon the subject of damages is that lots fronting upon a narrow street are not as valuable as if it was wider." This is insufficient to authorize the maintenance of a suit in equity in their behalf. The city has an ample remedy by ejectment. Baker v. McDaniel, 178 Mo. 447; Morris v. Prudden, 23 N. J. Eq. 530. (8) There are large forest trees growing on the ground within defendant’s inclosure, which ground is claimed to be a part of the street. Evidently the city has not opened up that ground for public travel, and it is not for the plaintiffs to do so. It is within the discretion of the city to open or not open this ground as a street, even if it was dedicated by the plat for that use, and plaintiffs, without the consent of the city and without making it a party to the proceeding, cannot open it as a public street. Baker v. McDaniel, 178 Mo. 447; Downend v. Kansas City, 71 Mo. App. 534; Taubman v. Lexington, 25 Mo. App. 226; Down-end v. Kansas City, 156 Mo. 60.

      Gillespy d Conley and 'E. W. Hinton for respondents.
    (1) The east half of the northern extension of Third street is a public highway. There are two ways of dedicating streets, statutory and common law. To constitute a statutory dedication all that is necessary is that the plat shall be made, acknowledged, certified and recorded. R.- S. 1909, sec. 10294; Reid v. Board of Education, 73 Mo. 304; Downend v. Kansas City, 71 Mo. App. 529. Such a dedication vests the fee for street purposes in the city in streets indicated on the plat and dispenses with the necessity of an acceptance. (See eases supra.) Brown v. Carthage, 128 Mo. 17; Buschman v. St. Louis, 121 Mo. 523; California v. Howard, 78 Mo. 88; Hill v. Hopson, 150 Mo. App. 611; Landis v. Hamilton, 77 Mo. 554; Kemper v. Collins, 97 Mo. 644; State v. Bradley, 31 Mo. App. 308; State v. Walters, 69 Mo. 463. The plat of Dysart’s Addition and all parts of it including those parts expressly dedicating streets were accepted by the city. This action not only made the streets public highways but imposed on the city responsibility for their maintenance. Brown v. Scruggs, 141. Mo. App. 636; Ely v. St. Louis, 181 Mo. 724. The right to the use of streets dedicated, by a plat is one that inures to the benefit of lot owners-in the addition .and to all others who may have occasion to use the street. Heitz v. St. Louis, 110 Mo. 618. All acquiring title from the original proprietor are estopped from asserting that streets indicated on the plat are not-public. City of Hannibal v. Draper, 36 Mo. 332; City of Hannibal v. Draper, 15 Mo. 634;: Baker v. Vanderburg, 99 Mo. 378. (2) Though the-ground platted is short twenty feet this cannot betaken off the street. The starting point in a descrip-' tion is not of more importance than other calls. Hubbard v. Whitehead, 221 Mo. 672; Combs v. Valentine,. 144 Ky. 184; Cannon v. Emmons, 44 Minn. 294 • Mining Co. v. Min. & Mill Co., 183 Fed. 51. The grant of the street to the public was prior in time to the grant to defendant’s ancestor in title, Hoffman. In such case the prior grantee must have all his land before the subsequent grantee takes anything. Kellogg v. Mullen, 45 Mo. 571; Van Amburgh v. Randall, 115 Mo. 607. Where two deeds from the same grantor conflict as to the boundary line, the older grant controls. 4 Am. and Eng. Ency. Law (2 Ed.), 808, and note 2; Kruby v. Lonseth, 116 Pac. 26. Street lines as shown by a plat must prevail over lot lines, even though the latter are shortened. Brown v. Carthage, 128 Mo. 10. Distance yields to course, lines and monuments. Combs v. Valentine?, 144 Ky. 184; McCroskey v. Wilson, 144 Ky. 377. (3) Injunction by private lot owners is a proper proceeding to remove obstructions from a public street, where the damage to the lot owners is special. Sugar Befining Co. v. Elevator Co., 82 Mo. 121; Cummings v. St. Louis, 90 Mo. 265; Thomas v. Hunt, 134 Mo. 398; Fisher v. Bailroad, 13'5 Mo. App. 37; Bude v. St. Louis, 93 Mo. 414; Mfg. C’o. v. Bail-road, 113.Mo. 315'; Sehopp v. St. Louis, 117 Mo. 135; Atterbury v. West, 139 Mo. App. 180. For the abutting property owner has the same right to the use of the street that the public has, and in addition thereto he has rights which are special to himself, as the right of ingress and egress and this right is a property right which he may protect by injunction. See cases supra. Also Ferrenbach v. Turner, 86 Mo. 416; Glaessoner v. Brewing Ass ’n, 100 Mo. 508. The public may own a street by prescription and still the city will not be responsible for its maintenance. Their rights are independent. Downend v. Kansas City,'156 Mo. 70: The erection and maintenance' of a structure on a public street or sidewalk that obstructs travel is a nuisance per se. Marble Co. v. Gas Light Co., 128 Mo. App. 108; Galloso v. Sikeston, 124 Mo. App. 383; State v. Franklin, 133 Mo. App. 486.
   VALLIANT, J.

This is a suit in equity, the purpose of which is to require the defendant to remove a fence which the plaintiffs say intrudes into a public street on which their property abuts and in which they are especially interested. Defendant contends that the fence is on his own property, not in the street.

There is no dispute about the facts. Mrs. Dysart owned ten acres in the corporate limits of the city of Columbia, being northwest quarter of the southwest quarter of the northeast quarter of section 12, township 48, range 13. The land lay in a parallelogram, its east line being the west line of Washington avenue. 3n 1894 Mrs. Dysart caused the land to be platted and laid off in town lots, streets and alleys, and called it Dysart’s Addition to the city of Columbia. The plat was duly executed .in conformity to the statute, approved and accepted by the city, and filed for record. Adjoining Mrs. Dysart’s land on the west was a tract of forty acres owned by General -Guitar. The line of division between these two tracts was the center line of section 12. At the time Mrs. Dysart made ber plat there was a fence on the division line between the two tracts, and there was a road forty feet wide west of that fence on General Guitar’s land, otherwise there was no street there. The road was made by General Guitar apparently for bis own use; there was a gate at the south end of it, the then northern terminus of Third street. In 1904, several years after the Dysart plat was filed, General Guitar filed a plat of bis land, divided into town lots, streets and alleys, called Guitar’s Addition to the city of Columbia, which was approved and accepted by the city. The plat showed a street forty feet wide along the east line of the tract, denominated thereon “North Extension Third Street.” After the filing of that plat the gate was left open and the road was traveled by the public, the fence still standing on the division line, which was the center line of section 12, between the Dysart tract and the Guitar tract. About a year before this suit was begun the owner of the Guitar property drew the fence in on bis land twenty feet which left of the old road only twenty feet outside of bis enclosure.

The Dysart plat also called for a forty foot street denominated thereon “Extension Third Street,” and it apparently dedicated one-half of the street, twenty feet. But the trouble comes from the fact that Mrs. Dysart did not own the twenty-foot strip marked on ber plat as dedicated; there is a mistake of twenty feet in the measurement of her land. From the west line of Washington avenue to the west line of Mrs. Dysart’s land, the distance is only 694 feet, but her plat calls for 714 feet, which intrudes twenty feet over on the land of ber neighbor, General Guitar. The west line of the .lots in the Dysart Addition, .now owned by defendant, is just 69'4 feet from tbe west line of Washington avenue.

Third street, at the time these plats were made, ran north through the city to Sexton street, which is the southern boundary of the Guitar tract, and there it terminated; it was forty feet wide. If Third street were extended north from that point its east line would coincide with the center line of section 12, the division line between the two tracts, and would therefore be entirely on the Guitar land. If Third street should be so extended as to take twenty feet from the Dvsart land there would be a jog to the east of twenty feet in the street at that point,' as is shown by the Guitar plat.

The land inclosed with defendant’s fence has never been used as a street; there are several forest trees on it; the city has never undertaken to improve the street in dispute; the only improvement of it was made by General Guitar. Plaintiffs introduced evidence designed to show that their properties would be diminished in value by reducing the street to a width of twenty feet. The finding’ and judgment were for the plaintiffs; the defendant appealed.

The out-boundary lines of the Dysart tract, intended to be included in the plat filed, and their distances, are given: Point 1, which is the point of beginning, is the southeast corner of the tract, in the west line of Washington avenue, thence north along that line 627 feet to point 2, on the east and west subdivision line of the northwest quarter of section 12; thence west with that subdivision line 714 feet to point 3, the center of Boulevard and extension of t Third street; thence south, with the north-and-south subdivision line and center line of extension of Third street, 627 feet to point 4, thence east 714 feet to the point of beginning. This description follows the quarter section subdivision lines on three sides, showing that-the purpose was to keep within the legal boundaries-of that subdivision. But in going west from point 2 a mistake was made in the distance; the surveyor went twenty feet beyond the true line.

It is argued by respondents that a plat made according to the statute, approved and accepted by the-city, has the same effect that a deed dedicating the-street to the city would have. In their brief the learned counsel say: “It is the same as if Mrs. Dysart had said: ‘I convey to the city of Columbia the west twenty feet off of the following described tract I own: beginning at point 1, the southeast corner of my ground, thence north along the west line of Washington avenue 627 feet to 2, on the east-and-west subdivision-line; thence west 714 feet to 3, the center of Third street; thence south with the north-and-south subdivision line and center of extension of Third street.’ ”'

A plat under the statute, section 10-294, Revised Statutes 1909, has the effect to vest title to a street in the city, the same as if dedicated by a deed, but the plat, like a deed, must be construed as a whole. Conceding that it was the purpose of Mrs. Dysart to dedicate twenty feet of her land to the city to be a part of' Third street, yet that was not the whole purpose of the plat, nor is that part to be given preference over all else. There were other streets and alleys dedicated which were to inure,' not only to the benefit of' the city in general, but to the prospective purchasers of the lots in particular. It is argued for respondents that the grant to the city was prior to the purchase of the lots by Hoffman, under whom defendant acquired title, because the dedication to the city took effect as soon as the plat was filed, whereas the purchase by Hoffman was two years later. But the plat is in that respect a common source of title and a purchaser of a lot after the plat is filed ’acquires a right to the streets and alleys in so far as they affect his property. The plat is not to be taken to pieces, it is to be taken as a whole, and the rights of the city and individuals, in so far as they are derived from the plat, date from its filing.

If a court should undertake to say that, it appearing that Mrs. Dysart intended to convey twenty feet of her land for a street,-but by mistake of the surveyor the twenty-foot strip described was located on land she did not own, therefore, the plat must be reformed and another strip must be found and so located as to put it on the land that she did own at the time, would the court adjust the matter by taking the twenty feet off defendant’s property or would it spread the loss over the whole tract? The mistake, so far as the plat shows, was as patent to the city when it examined and approved the plat as it is now; the city knew then that the grantor was going to offer lots for sale as marked on that plat. The law requiring the city to pass judgment of approval of the plat before allowing it to be filed, contemplates that the city will examine before approving it, but if the city approves it and allows it to be filed, and lots are offered to the public for sale, and men buy lots on the faith of it, the city’s right to what the plat gives it is not superior in quality or prior in time to the rights of the purchaser.

The Dysart plat did not more distinctly show an intention to dedicate twenty feet of ground for a street than it showed an intention to offer for sale the lots of the size therein specified now owned by defendant; and when it is discovered that after giving the purchaser the full measure of his lots as specified on the plat the land is short in measure and there is nothing left for the street, the city has no more right to require the lot-owner to make good the deficiency than the lot-owner would have, if on re-measurement, it was found that .his lots lacked several feet of being as long as the plat called for, to appropriate the land granted to the' city for a street to make good his deficiency. The plat, like a deed, is one instrument, and it must be construed altogether. The trouble with the city’s claim, as compared with that of the defendant, is that the land marked on the plat as dedicated to the city did not belong to Mrs. Dysart when she made the plat, whereas the land described in the plat as embraced in the lots now owned by defendant did belong to her; she had no right to dedicate the one, she did have a right to sell the other.

Respondents in their brief invoke the well recognized rule of construction that when property is attempted to be described by metes and bounds, with courses, distances and monuments, if there is a discrepancy between courses or distances and monuments, the former must yield to the latter. But that rule will not aid the respondents, because there are no monuments here, unless we take the forty-foot road which was at the date of the plat all on General Guitar’s land. The learned counsel sav: “While the second distance is erroneous, the description goes to a fixed point and monument, i. e., the subdivision line.” But that subdivision line is not a monument, it is not visible, it is ascertained only by measurement, and is liable to be located here or there, correctly or incorrectly, according to the skill or care of the surveyor; it is not the section line shown on the government surveys; the government does not locate the subdivision lines of a section. The fact that it was not a fixed point is demonstrated by the error in this plat. Nor is the call for the center of the extension of Third street, eo nomine, a fixed monument, because - Third street had not then been extended, it had not up to that time existed, and its location is even now the very question in dispute in this case. Washington avenue is a monument, and the starting point of this survey, in the west line of Washington avenue, is a fixed point, but not so the then to-be extension of Third street. At the date of this plat the only visible object on the face of the earth that could answer the description of Third street extension was the road on the Gnitar land, which coincided entirely with Third street extended. The east and west lines of Third street extended north would embrace that road, and in fact, as the evidence shows, that road was used by the public as' the extension of Third street from the date of the filing of the Guitar plat until about a year before the institution of this suit, when the owner of the Guitar land put his fence in the middle of the road. The center line of this road is the west line of Mrs. Dysart’s plat, and the east twenty feet of the road is what Mrs. Dysart intended to dedicate, and it is what would have been dedicated by virtue of the plat if it had been her property. The land so intended to be dedicated is clearly described; there is no room to contend that there was a misdescription or that she intended to convey other land than that embraced in the description. She was doubtless mistaken in the extent of her domain, but she was not mistaken in the particular strip of land that she intended to give for that street, and the dedication fails only because she had no title to it.

Respondents say that the effect of the plat is the same as the effect a deed would have, and that is so, but parties claiming under a deed can.take only what the deed in fact conveys, not what we may surmise the grantor intended to convey.

Whatever Mrs. Dysart may have intended to do, it is certain she did not in fact dedicate to the city the west end of the lots shown on her plat, the lots now owned by appellant, and as she did not do it we have no right to say that if she had been better informed as .to the extent of her territory she would have done it, therefore we will remodel the plat at the expense of the defendant.

The judgment is reversed and'the cause remanded to the circuit court with directions to enter judgment for defendant, dismissing plaintiff’s bill.

All concur.


author: BROWN, C. PER CURIAM.—The

text:
    P. A. WHITWELL et al. v. S. W. SPIKER et al., Appellants.
    Division One,
    December 23, 1911.
    1. EJECTMENT: Deed: Description: Burden of Proof. Where T has been for twenty years in open and visible possession at the time a deed was made which referred to T’s tract in bounding the land granted, the presumption is that such reference in the deed accords with T’s possession, and the. burden of proof rests on him who denies that fact.
    2. -: -: -: Area. In determining whether a reference, in the description in a deed, to “T’s tract of land” means the unmarked boundaries of a survey corresponding, to the description in T’s deed, or whether it means the monuments and fences established by the parties to T’s deed at the time possession was delivered (and which had been in existence more than 17 years), the court must consider natural and permanent monuments, artificial marks, courses, distances and area. In this case area becomes a controlling element.
    2. -: -: -: Facts. One Tooley, in 1880, acquired a tract of land by deed, fenced it immediately and has ever since lived upon it. Although he fenced in only two acres, the area granted him in his deed, he placed his south fence several feet beyond his true line as established by a survey, made over twenty years later, which followed the description in his deed. Twenty years after Tooley took possession, the owner of the land upon the south (who had purchased from Tooley’s. grantor the remainder of the section) deeded a bit of ground adjoining Tooley’s to W, the description in W’s deed beginning “at the southeast corner of Tooley’s tract of land.” Next the said owner deeded to plaintiffs a tract adjoining W on the south,' said tract being described in the deed as running to the southwest corner of “tract of land sold by grantor to W.” Defendants are purchasers of the southern part of W’s tract. Plaintiffs bring this action in ejectment to recover possession ■of the strip of land which would be theirs should Tooley’s possession southward be curtailed by the description in his deed. Held, that plaintiffs cannot recover. It is evident, under the facts and circumstances in this case, that the parties adopted the south fence of Tooley’s enclosure as a monument to mark their boundary.
    Appeal from Jasper Circuit Court.—Hon. D. E. Blair, Judge.

      Reversed.

      H. S. Miller and McReynolds & Halliburton for appellants.
    (1) (a) Adverse possession not only bars action, but confers title. Kirton v. Bull, 168 Mo. 622.. (b) Adverse possession is the act of holding possession claiming the right to do so against one having a superior right or title. St. Louis v. Priest, 103 Mo. 652; Ivy v. Young, 129 Mo. 501. (c) Adverse possession with the owner’s knowledge and acquiescence need not be open and notorious. Dausch v. Crane, 109 Mo. 323. (d) The open and notorious adverse possession for the statutory period operates to convey as complete a title as by deed. Nelson v. Broback, 44 Mo. 596; Watt v. Dounell, 80 Mo. 195; Ekey v. Ingle, 87 Mo. 493. Our contentions are as follows: First, that Tooley was in November, 1898, and had been for eighteen years prior thereto, in the open, notorious, peaceable, adverse possession of the land to his south fence, claiming title. Therefore the title to the land to his south fence absolutely vested in him the same as though by deed. Second, that Tooley, for eighteen years prior to November 1,1898 (date of deed to Watson), held possession of land to his south fence claiming to the fence with the knowledge and acquiescence of the Hinkles and of Brinkerhoff and Cunningham the then owners of the remainder of the forty, which vested title in him without regard to its being open and notorious. Third, that Hinkle and Tooley having fixed the south boundary line of Tooley’s land and Brinkerhoff and Cunningham having acquiesced in said line, it became and was an agreed boundary line. Irwin v. Woodmansee, 104 Mo. 403; Schwartzer v. Gebhardt, 157 Mo. 99. (2) (a) All purchasers of land from Brinkerhoff and Cunningham and their grantees purchased with notice of the right and title of defendant to the land lie liad under fence and was in possession of, and also of Tooley’s right and title. Wigginhorn v. Daniels, 149 Mo. 165; Squires v. Kimball, 208 Mo. 1. c. 119. (b) Notice sufficient to put one on inquiry as to the existence of a right or title, is presumed to be notice of such right or title. Rhodes v. Outcault, 48 Mo. 367; Meier v. Blaine, 80 Mo. 179; Roan v. Weim, 93 Mo. 503; Drey v. Doyle, 99 Mo. 459; Barrett v. Davis, 104 Mo. 549; Plow Co. v. Sullivan, 158 Mo. 440. (3) The evidence showing that F. M.. Tooley fenced his land in 1880 and held possession to the south fence to 1898, claiming the enclosed land as his; the fact that when he took possession and fenced he only intended to fence and claim to the true line, did not destroy his adverse possession, it being his intention to claim, and his claiming and holding all that was fenced. The legal title was vested in Tooley when Brinkerhoff and Cunningham conveyed to Watson, and by the very terms of their deed to Watson, “commencing at the southwest corner of F. M. Tooley’s tract of land,” necessarily commenced at the southwest corner of his fence and ran south 416 feet, and defendant’s peremptory instruction should have been given. Cole v. Parker, 70 Mo. 372; Knowlton v. Smith, 36 Mo. 507; Kincaid v. Dorney, 47 Mo; 337; St. Louis University v. MeCune, 28 Mo. 481; Thomas v. Babb, 45 Mo. 384; Tamm v. Kellogg, 49 Mo. 118; Hailton v. West, 63 Mo. 93-; Walbrunn v. Bailen, 68 Mo. 164; Handlan v. McManus, 100 Mo. 125; Cole v. Parker, 70 Mo. 379; Battner v. Baker, 108 Mo. 311; G-oltermann v. Schiemeyer, 111 Mo. 405; Hedges v. Pollard, 149 Mo. 216; Schad v. Sharp, 95 Mo. 574; Lemmons.v. McKinney, 162 Mo. 531; Pitts v. Sheriff, 108 Mo. 110; Schnare v. Austin, 106 Mo. 610; James v. Ins. Co., 148 Mo. 1; Dams v. Braswell, 185 Mo. 581; Milligan v. Fritts, 226 Mo. 200.

      C. H. Montgomery for respondents.
    (1) Tooley did not claim adversely until a year •or two before this suit was brought. The possession of land is not adverse, however long it may be held, and does not ripen into title, where the defendant testified that he only claimed to the true dividing line. His possession, though for more than ten years, was not adverse, and where the evidence is conflicting as to whether the defendant claimed to be the owner of the disputed tract wherever the true line might be, or claimed to own only to the,true line, it is a question for the jury. Ford v. McAnelly, 215 Mo. 393; Batner v. Baker, 108 Mo. 314; Jacobs v. Mosley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 574; Krider v. Milner, 99 Mo. 145; Skinker v. Haags, 99 Mo. 209. (2) The good faith ■of Tooley’s occupancy is a question for the court. Hunter v. Wethington, 205 Mo. 293; Gannon v. Gas Co., 145 Mo. 516; Smith v. Royse, 165 Mo. 654. (3) Where a subsequent deed adopts the corner of a tract previously deeded as a starting point, it will be the •corner as described by such previous deed and not the corner of some fence! Manter v. Picot, 33 Mo. 490; Whittelsey v. Kellogg, 28 Mo. 406; Harding v. Wright, 119 Mo. 9. •
   BROWN, C.

Ejectment to recover a strip of land in Jasper county bounded in the petition as follows: ^‘Beginning at a point four hundred and eighty-eight and five-tenths feet north and twenty-one and three-.tenths feet east of the southwest corner of the southwest quarter of the southwest quarter of section thirty, in township twenty-eight of range thirty-two in Jasper county, Missouri, thence east one hundred and eighty-six and seven-tenths feet, thence north twenty-nine and nine-tenths feet, thence west one hundred and eighty-six and seven-tenths feet, thence south twenty-nine and nine-tenths feet to the place of beginning.”

The trial was had in December, 1907, before the court, a jury having been waived, and the finding and judgment were for the plaintiff for the possession of the same land described in the petition, with nominal damages, from which this appeal was taken.

Both parties claimed under Cynthia Hinkle and John Hinkle, who were the owners of the entire forty acres, the west line of which is 1319 feet long. September 23, 1880, they conveyed, by warranty deed, to Francis M. Tooley, a parcel described as follows: “Two acres of land described as follows, beginning at the northwest corner of the southwest quarter of the southwest of section No. thirty No. (30), township twenty-eight of range thirty-two, thence running east one rod past a well near said line, thence south far enough to include towe acres in said tract to the west line.”

Mr'. Tooley immediately fenced his ground, his south fence being 414.3 feet south of the north line of the forty. His west fence is on the east side of a public road, and is twenty-one feet east of tb,e west line of the forty, and his enclosure two hundred and five or two hundred and five and a half feet east and west, and contains a few superficial feet less than two acres. He has lived on the land, sometimes leasing the south end, ever since. He says in his testimony,' and there is no attempt to weaken or dispute it, that Mr. Hinkle himself measured his ground, placing a stone at the southeast corner, and that he built the fence on those lines, where it still remains.

March 18, 1882, the Hinkles conveyed to William E. Brinkerhoff and George Cunningham by warranty deed, the entire forty, “except two acres in the northwest corner of said tract, containing- thirty-eight acres more or less.”

November 1, 1898, Brinkerhoff and Cunningham and their wives conveyed to Wm. Watson two acres of land beginning at “the southwest corner of F. M. Tooley’s tract of'land,” running south four hundred sixteen feet, east two hundred and eight feet, north four hundred sixteen feet, thence to beginning. October 6, 1902, Brinkerhoff released from a deed of trust a parcel of the land beginning at the south line of the forty, and running thence north nine hundred and two feet more or less to the south line of the land sold to F. M. Tooley. On August 7, 1900, Watson and wife •conveyed to James W. Chambers and wife the north one hundred and four feet of his two acres, describing it as ‘ ‘ commencing at the southwest of F. M. Tooley’s land,” and on the same day sold to Robert N. Wade and wife the remainder of their two acres, describing it as commencing ‘ ‘ one hundred and four feet, south of the southwest corner of a tract of land belonging to F. M. Tooley.”

The Wades, in 1902, sold one hundred and fifty-six feet off the north side of the tract so purchased by them to J. S. Walker, and the remaining one hundred, and fifty-six feet to Mrs. Spiker, who is, with her husband, ^defendant in this case. They claim that their south line is four hundred sixteen feet south of Mr. Tooley’s fence, or eight hundred and thirty and three-tenths feet south of the north line of the forty, leaving-four hundred eightv-eight and seven-tenths feet between their south line and the south line of the forty, of no part of which are the defendants in possession.

The plaintiffs claim under deeds dated September 1, 1902, and October 7, 1902, from Brinkerhoff and Cunningham and wives respectively, in each of which the land is described as follows: “Beginning- at the southwest corner of the southwest quarter of the southwest quarter of section thirty (30) in township number twenty-eight (28) of range number thirty-two (32), and running- thence north on the section line four hundred and eighty-six (486) feet more or less to the southwest corner of tract of land sold by grantor to Wm. Watson, thence east two hundred and eight (208) feet, thence south four hundred and eighty-six (486) feet, more or less, to section line, thence west on section line two hundred and eight (208) feet to place of beginning, being 2 32-100 acres more or less.”

Two or three years before the trial the defendants employed one Grieb to make a survey of the locality. He testified that he “found what they said was the well mentioned in the deed from Hinkle .to Tooley, ’ ’ and made a survey in which he discovered that the land described in that deed should measure 226.5 feet east and west, and 384.6 feet north and south, so that Tooley’s fence is 29.7 feet too far south.

At the close of the evidence, in which the foregoing facts were undisputed, the defendants asked a peremptory declaration of law in their favor, which was refused.

The court, in substance, declared the law to be that if Tooley, at the time of the conveyance from Brinkerhoff and Cunningham, had acquired title to his •enclosure by adverse possession, the plaintiffs should not recover.

OPINION.

This ease seems to have been tried by the circuit •court upon the theory that the rights of the plaintiffs and defendants rested entirely upon the question whether or not F. M. Tooley had acquired title by adverse possession to certain land inside his fence. The declarations of law given by the court were di-, xected exclusively to those legal principles' which ■should govern the trial of that issue. The court seems to have assumed that Mr. Tooley, between whom and the litigants there is no privity of estate, could, by disclosing his state of mind while in the occupancy of this land, make or break the case of either of them.

The only question to be determined is the meaning of the words “F. M. Tooley’s tract of land” as used in a deed made November 1, 1898, in which Wm. Brinkerhoff and wife and G-eorge P. Cunningham and wife were the grantors,' and Wm. M. Watson was the grantee. If those words should be held to refer to the technical description, by metes and bounds, with reference to the lines and corners of the public survey, as contained in Tooley’s deed, then there is evidence tending to justify the finding and judgment of the court for the plaintiffs; but if they are held to refer to the enclosure and possession of Mr. Tooley at the time the Watson deed was made, then there is no evidence to authorize or sustain the judgment of the trial court. That the court did not consider these words to refer exclusively to the paper title or deed by which Mr. Tooley acquired his land, is demonstrated by the fact that it tried his title to the entire tract included in his enclosure, by adverse possession. From this we infer that, in its opinion, the words quoted referred to lands held in fee by him and not to such as he might have held by mere possession or license.

On some such theory as this the right of defendants to the possession of the land in suit seems to have been tried vicariously in the person of Tooley. It would seem to follow that in the opinion of the circuit court, if Tooley’s title to his entire tract should fail, then the title of every purchaser who had taken conveyance by descriptions dependent upon reference to “Tooley’s tract of land” would fail with it.

It will be noted that this description avoids carefully any reference to Tooley’s deed. That instrument is not made a part of the Watson deed in any manner whatever, but the land itself which the parties chose to describe as “Tooley’s tract of land” is made a part of it, and this whole controversy turns upon the question, What did they indicate by that description?

Were this suit against Tooley, for the land included in his enclosure, his bare possession would support Ms right until plaintiff’s should prove a better possessory title. Were it a suit by Tooley against the defendants in this case for having entered upon his possession, the bare proof of his prior possession would be sufficient to enable him to recover, except as against a better title. The fact of his possession would make it “Tooley’s tract of land” as to all the world excepting the true owner who should choose to assert his title. So in this case Tooley having been m open and visible possession at the time of the execution of the deed to Watson, the presumption is that the reference in that deed accords with such possession, and the burden is on plaintiffs to show that it is not the “tract of land” referred-to.

They attempt here to meet that burden by showing that Tooley claims under a deed, and that the deed does not describe a portion of the land which is within Ms enclosure; so that the question is presented whether or not the reference in the Watson deed is to the unmarked boundaries of a survey corresponding to the description in Tooley’s deed, or to the monuments and fences established by the parties to that deed at the time possession was delivered and received, and which had then been in existence more than seventeen years. In answering this question we must take into consideration certain well established rules, according to which the Mtention of the parties is ascertained and expressed in relation to the establishment and perpetuation of the boundaries of land. Among the elements to be considered in the application of these rules are natural and permanent monuments, artificial marks, courses and distances and area; usually taking precedence in the order named. [Whitehead v. Ragan, 106 Mo. 231, 235.] Although area, or quantity, is perhaps the most yielding of all these, it sometimes becomes, as we shall see, the controlling element of the inquiry. [Cole v. Mueller, 187 Mo. 638; Hostetter v. Railroad, 108 Cal. 38; Hall v. Shotwell, 66 Cal. 379; Ellis v. Harris, 106 N. C. 395.]

In Jasper county the government survey constitutes a convenient standard for the description and measurement of land but its lines can only be found by reference to the visible monuments, both natural and artificial, which have been established for that purpose. These, in thickly settled communities, and especially in cities, become obliterated, and their places are supplied by houses, fences and other visible things that have been planted or adopted for that purpose. When this has been done they may be used as landmarks for all, and their removal does not, of course, remove the land that has been bought and sold with reference to them. As to these monuments, this -court, in Jones v. Poundstone, 102 Mo. 244, said: “These stakes originally planted by Lloyd are monuments, and they determine the true corners of the mining lots. These lots were marked off on the surface of the land, and the lines thus fixed do not change with every new survey. Subsequent surveys will aid in finding lost corners, but where, as here, the old established corners are well known they must control.”

In Whitehead v. Ragan, supra, the court, after remarking that the plat with reference to which the deed to a lot is made, in legal construction becomes as much a part of the deed as if it had been fully incorporated in it, said: “While the deeds, under which plaintiff claims title to lot 1 in the subdivision, must be construed as describing the land conveyed as being of the full length shown by the plat, it does not follow that the particulars of the description contained in the plat are conclusive of the correctness of such description. The plat is only intended to be a representation of the actual survey as made upon the land itself. It is in the nature, of a certified copy of an instrument which will be controlled by the original.”

In Taylor v. Zepp, 14 Mo. 482, 489, a deed conveyed the northern part or half of a tract of land containing 27.29 acres, the tract conveyed being 13.64 acres. It afterward developed that the principal tract contained 31.92 acres, but a little over two acres off the north end was covered by the St. Louis common.. The seller and purchaser divided the tract between them equally, leaving out that part which fell within the common, and took possession accordingly. In holding that the purchaser was estopped from claiming one half of the entire tract according to the terms of his deed, this court said: “The object of rules of construction is to arrive at the intention of the parties, but no rules can be framed which will lead to so correct a conclusion as the interpretation pointed out by the acts of the parties themselves. We may resort to these rules in the absence of such indications, but .who so well qualified to understand their own meaning as the parties themselves? Let it be admitted, in' this case, that a line parallel to the north line of the patent, at a distance sufficient to give the quantity called for, is the line which by construction of law would be the proper one to give shape to the tract; does it follow that no other line could be agreed upon between the parties, including even the quantity and answering all the definite calls of the deed? A tract of thirteen or fourteen acres, at the north end of a larger tract, may be located by shifting the north line of the smaller tract in a variety of directions, and the quantity called for and the position required still be reserved. No doubt a straight line, parallel to the northern line, is the usual, natural and proper line, in the absence of action by the parties themselves; but if caprice, or equity, or an honest fulfillment of obligations should prompt the parties to select a curve, or a diagonal, or any other line, I do not know of any rule of law or equity which compels the courts to interfere.”

We quote so fully from that case because it has some points in common with this which ought to be considered. In this case Mr. Tooley purchased two acres of land and took p.ossession of almost exactly that quantity, leaving outside his fence twenty-one feet for a public road which runs along the west side of the forty. No doubt the opening of this road was the honest fulfillment of an arrangement which greatly benefited his grantor, the owner of the remainder of the land, as well as himself; and the fact that the situation so created endured for more than twenty years before it was questioned, indicates that it was satisfactory to the parties, and raises the presumption that it was their deliberate and voluntary act.

These cases .suggest questions relating primarily to the rights of adjoining proprietors under arrangements which seem to have originated in a desire to protect themselves against future surveys, made, perhaps, after all other landmarks than the indicia of their own possession will have become obliterated. There is no reason why their neighbors, and others dealing with them in full view of the physical facts, should seek to interfere, or to overturn the conditions created by the only parties in interest.

The class of land descriptions to which the one now under consideration belongs is purely conventional, and depends upon the recognition of the public. As was said by this court in Marvin v. Elliott, 99 Mo. 616, 621: “The law is well settled that land may be conveyed by a description or appellation by which it is well known in the neighborhood, and that parol evidence will be received for the purpose of showing that it is well known by the description by which it is designated in the deed.” If it may be so conveyed, it goes without saying that the same description or appellation may be used to designate it where it is sim-. ply an incident to the description of other land. The words “Tooley’s land,” or “Tooley’s tract of land,” constitute the name of a physical object and derive their efficacy from the recognition of the public in the same way that the name of John Smith is convenient and efficient because it is connected in the minds of those that hear it with the person so designated. There is, however, an ambiguity latent in the words “John Smith.” They are liable to excite the inquiry, Which John Smith? And we are at perfect liberty then to seek oral information on that subject, without fear of being thought to question the genuineness of the name. The words “Tooley’s land” may possibly apply equally well to two distinct things. If that be true in this case, this court has lately suggested a means, peculiarly applicable to the facts we are considering, of ascertaining the particular thing to which they apply.

In Cole v. Mueller, supra, it had under consideration a deed in which the land conveyed was described as “ten acres more or less in the southeast corner of the northwest quarter of the northeast quarter, and more particularly described as being bounded on the north and west by land formerly owned by Salathiel Cole.” There were two tracts of land which had formerly belonged to Salathiel Cole, both of which belonged to the grantor. The description in the deed, when it had gone far enough -to reach the boundary line of the first tract, would include five acres, but in all other respects the conformity to the description of the deed would be perfect. If it included this first tract of land “formerly owned by Salathiel Cole” and went on to the next tract which would answer that same description, it would include ten acres. This court held that in explaining this ambiguity the other calls of the deed should be taken into consideration, and that the call for ten acres more-or less indicated the intention of the parties to disregard the first boundary line that came within its description, and to convey the land between that and the second. Applying this same rule to the transaction in question, we have no difficulty in ascertaining the intention of the parties, both grantor and grantee.

The deed from Brinkerhoff and wife to Mrs. Whit-well is dated September 1, 1902, and was recorded on October 6, 1902. At both those dates the land was subject to a.mortgage owned by Mr. Brinkerhoff, which conveyed also the two acres conveyed to Watson, and, of course, it should be satisfied at or before the delivery of the deed to Mrs. Whitwell. In the entry of the satisfaction, he described the length of the tract he was releasing as being 902 feet, more or less, from the southwest corner of the forty to the south line of “Tooley’s land,” and in his own deed to Mrs. Whitwell, recorded at the same time, he described the land conveyed as beginning at the southwest corner of the forty and running north 486 feet, more or less, to the southwest corner of the land sold to William Watson. Adding about 416 feet, the length of the Watson tract according to the deed, makes 902 feet, the distance stated in the satisfaction .of the mortgage. This is within about two feet of the distance given by the surveyor who testified for plaintiff as the result of his own measurement from the south line of the forty to Mr. Tooley’s south fence, and indicates beyond doubt that having taken twenty years to think about it after his acquisition of the land, Mr. Brinkerhoff was willing to take Tooley’s fence as the basis for his deed to Mrs. Whitwell. Mr. Cunningham adopted the same measurement in his deed made to her the next day, so that all the parties to the transaction—-Mrs. Whitwell, Mr. Cunningham and Mr. Brinkerhoff—at the time of making the deed under, which plaintiffs in this suit claim, interpreted the words “Mr. Tooley’s tract of land”' to be the land enclosed within his fence. -Those words implied no assertion of title, but simply of reputation and recognition by the parties. [McKeon v. Millard, 47 Cal. 581, 583.] The parties evidently adopted the south line of Tooley’s enclosure as a monument to indicate their own boundary. It was marked on the ground at the time by his fence, and was properly described in the deed to Watson, and no act or intention of Tooley could affect the operation of the conveyance, any more than a stranger, by removing the comer stone, could affect the title to one’s farm.

For the reasons stated we do not think that Mrs. Whitwell, by her deeds from Brinkerhoff and Cunningham, took any title to the land in controversy. The facts upon which this conclusion is founded standing admitted in the record, we do not see what good purpose can be served by another trial, and the judgment of the_Jasper Circuit Court is therefore reversed.

Blair, C., concurs.

PER CURIAM.—The

foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.