Kunze v. Evans

31 S.W. 114, 129 Mo. 1, 1895 Mo. LEXIS 116

Opinion

Brace, P. J.

This is an action in ejectment commenced July 2, 1887, by the plaintiff, L. O. Kunze, against T. D. Evans and S. J. Beattie, in the circuit court of Cass county, to recover a narrow strip of ground three feet, by thirty feet, six inches, in lot 4, block 2 in the city of Harrisonville, covered by an ice house erected by said defendants in the year 1882. Judgment for plaintiff, and the defendant Evans appeals. The case has been here before, and is reported in 107 Mo. 487, where a full statement may be found.

The decision of the case then, as now, turned upon the true location of the line between the lot of the plaintiff and the lot belonging to the wife of the defendant Evans. Both parties claimed according to the lines of their respective deeds, until this controversy arose. On the former appeal, it was found that the true division line was twenty-seven feet south of the north line of plaintiff’s lot, and that the ice house extended north over that line six inches onto the plaintiff’s lot.

The evidence on the last, was substantially the same as on the former, trial, except that, since the former trial, another survey was made, by which it was made to appear on the last trial, that instead of the east and west lines of plaintiff’s lot being of equal length, as they appeared to be on the first trial, that owing to the fact that the north and south lines of the block converge going west, the plaintiff’s west line was in fact only twenty-six feet, eight and one tenth inches in length, instead of twenty-seven feet. The circuit court adopted the line of. the last survey and consequently gave the plaintiff judgment for three and nine tenths inches by thirty feet less than he was found to be entitled to on the former appeal. There was no error in this, but if so, it was an error in favor of the defendant, of which he can not complain.

The only additional point made on this appeal, to those passed upon in the former appeal, is that the defendant Evans was not in possession at the time the suit was commenced. The trial court found as a matter of fact that he was, and there was ample evidence to sustain the finding. Actual “occupancy of, or residence upon, the property is not a necessary element of possession.” Phillips v. Phillips, 107 Mo. 360. The judgment is affirmed.

All concur.