St. Louis University v. McCune

28 Mo. 481

• Court: Supreme Court of Missouri
• Decided: March 15, 1859
• Status: Published

Opinion

Riohardson, Judge,

delivered the opinio

The dispute in this case is about a smar the line between two common fields in the St. Louis. Both of the lots were confirme! bv ftplkff'of Congress of the 29th April, 1816, but the offl&iM survearoí the defendant’s lot was not approved until 1857,ana itaoes not appear when the survey of the plaintiff’s confirmation was approved.

The first question that ¿rises is -whether there can be an adverse possession of a confirmation under the act of 1816 until the confirmation has been surveyed and the survey approved. That question was discussed and decided in the case of Aubuchon v. Ames, 27 Mo. 89, which is not distinguishable from this case, and the instructions therefore asked by the defendant bearing on that point were properly refused.

If the plaintiffs erected their fence accidentally upon the defendant’s land through mistake or ignorance of the correct line separating the tracts and without intending to claim beyond their true line, then the line of occupation thus taken and the possession that followed it did not work a disseisin. The proposition is fully sustained by the authorities cited in the defendant’s brief.

The instruction given for the plaintiff contained, in the abstract, a. correct statement of the law, which is illustrated and approved by the supreme court of the United States in the case of Boyd v. Graves, 4 Wheat. 518 ; but the evidence preserved in the record did not warrant it, and for that reason it is erroneous.

The other judges concurring, the judgment will be reversed and the cause remanded.