109 Mo. App. 293 | Mo. Ct. App. | 1904
(after stating the facts). — Ignoring and passing by, without discussion, various charges of infirmities in the record predicated on minor and subordinate features developéd at the trial, not arising out of the principles controlling the case, nor likely to recur at any future hearing, and confining consideration to the questions peculiar to the case and decisive of it, the first and dominant proposition advanced by appellant is, that the imperative instruction asked on his behalf at close of the plaintiff’s testimony should have been given. The land submerged by the lake water was private property, title to which had been parted with by the State and county to private individuals, including the parties hereto or their predecessors in title and
Plaintiff declared on no rights accruing to or possessed by him as a riparian owner, the trial petition set out for recovery, his ownership, the ancient existence of the lake, the establishment and maintenance of his valuable fisheries and the construction by defend
The testimony of the value of plaintiff’s fishing equipment and paraphernalia in the absence of employment for them ensuing, infused into the inquiry of the estimate of plaintiff’s damages and the range of his recovery, an element without proximate connection with the act of constructing the drainage canal. The plaintiff was entitled to recover such damages only as were the proximate and natural consequences of defendant’s act, if unlawful, but not for results collateral and incidental; the fishing tackle of plaintiff was not affected in quality or market value after its use at the lake had been terminated. [Insurance Co. v. Boon, 95 U. S. 130; Fontaine v. Schulenbert, etc., Co., 109 Mo. 55, 18 S. W. 1147.] The proof tendered and received respecting prospective damages was improper; plaintiff’s recoverable damages, if any, were defined and determined at time he instituted suit, and he was limited in recovery to those then accrued. Inquiry into the future market price of fish and probable increased demand for such commodity at time of the trial should not have been tolerated, especially as plaintiff had sold his lands immediately after beginning suit and, therefore, has parted with any interest in the fisheries for more than two years prior to time of trial. [Benson v. Railroad, supra.] There was no evidence introduced tending in the remotest degree to establish any oppressive or malicious conduct or intent on part of defendant, and, as the court properly determined, no punitive
It is apparent that the only lawful right of action disclosed in plaintiff was restricted to recovery for the lawful damages, consequent on the trespass manifested by the testimony in the encroachment of the dredge boat on plaintiff’s land and the excavation of the soil of plaintiff.
The judgment is reversed and cause remanded.