68 Mo. App. 665 | Mo. Ct. App. | 1897
This is an action in trespass wherein plaintiffs seek to recover treble damages of defendant for cutting and carrying away certain timothy grass. The action was brought under section 8675, Eevised Statutes, 1889. The judgment below was for plaintiffs, the damages being trebled.
The facts necessary to determine the controversy - are these: One Uphouse was the owner of the land on which the grass was growing. He had rented the land to one Hord, who was in possession thereof, and, at about the time when the meadow was ready for cutting, he sold ten acres of the grass to plaintiffs. Defendant claiming that he had theretofore purchased the grass from Hord, and having already cut and taken away a part of it, entered the land and cut the grass in controversy after the sale to plaintiffs.
“The plaintiff having the right to all the timber upon the premises except the pine, with the right to enter and remove it, and having entered for the purpose of removing it, is to be regarded as in the possession of the premises for all purposes, aiid to the extent necessary to enable him to accomplish it and no further. Beyond this he has no interest in the premises and no right to the possession, but to this extent hi's right and possession are exclusive, both as to the defendant and the owner of the soil, and if either were to enter upon the premises, and do any act in violation of these rights, the plaintiff would have his remedy by an action of trespass^, cl. So, too, of the defendant, he is the. owner of the pine timber with the right to enter and remove it. The case shows him to be in possession of the premises for the purpose of removing the pine at the same time that the plaintiff is in possession for the*669 purpose of removing the other timber. Their possession is like their interest, not joint, but separate, and limited by the extent of their interest, and the possession of both does not constitute the entire possession, for except for the purpose of removing the timber' the owner of the soil is to be regarded as in the possession, and for any injury to the freehold, not affecting the rights of the plaintiff or the defendant, in this suit, the owner of the soil could maintain the action of trespass qu. cl.”
Furthermore, we believe instruction number 3, for plaintiffs, is apt to mislead the jury as it now reads. It properly informs the jury that the burden rested on defendant to show that he had probable cause to believe that the grass was his own. But it ought to have been immediately preceded with a submission of the hypothesis of plaintiffs’ being the owners and in possession. So that the instruction as a whole would have informed the jury that if they believed that plaintiffs were the owners and in possession of the property, then the burden was on defendant to show he had probable cause- to believe the property was his. The judgment will be reversed and the cause remanded.