146 Mo. App. 319 | Mo. Ct. App. | 1910
This is a suit in replevin instituted before a justice of the peace by respondent to recover from appellants one barge load of sand. By the judgment of the justice the plaintiff was awarded possession of the property, together with costs and defendants appealed. The cause was tried in the circuit court, de novo, August, 1907, by the court, sitting as a jury, where respondent again obtained judgment and defendants have appealed to this court.
The sand in controversy was taken from a sand bar along the bank of an island of which plaintiff claimed possession. The island from which the sand was taken is situated in the middle, or near the middle of the Mississippi river between Missouri and Tennessee. It is known as the Wolverine Island and contains from two to three hundred acres of land. The island formed there several years ago and was not included in any U. S. Government survey, and, therefore, was not claimed by the government, or by any county or State. The only title that’ could be acquired to the land on the island was such as that claimed by Mr. Campbell, to-wit, the title of occupancy.
The evidence shows that the respondent had cleared and put in cultivation about seventy-five or eighty acres
Will these facts support the judgment? It is apparent that plaintiff has no title to any part of the island, but his entire right rests upon possession alone. Plaintiff contends that the sand taken by defendants was, at the time, in his possession and that the act of defendants in taking it was tortious, and that, therefore, his prior possession will support this action.
There is some apparent conflict in the early decisions in this State upon the question of when naked possession will support an action of replevin. It has been held that the proof of prior possession alone is not sufficient to support the action in a case in which plaintiff’s title is denied, and in that state of the issues plaintiff must prove a general or special interest in the property and the right of immediate possession. [Bayless v. La Faivre, 37 Mo. 119; Gray v. Baker, 38 Mo. 160; Gartside v. Nixon, 43 Mo. 138; Wright v. Richmond, 21 Mo. App. 76.]
While in another line of cases the position is taken that prior possession is sufficient to support an action in replevin against any one who cannot show a better title. [Summers v. Anderson, 36 Mo. 307; Smith v. Lydick, 42 Mo. 209; Weeks v. Etter, 81 Mo. 375.]
A close examination of these cases, however, will disclose that there is no real conflict, but that what was said in each case was correct as applied to the facts of that particular case. The correct rule to be deduced from all the cases is that prior possession is sufficient proof of title upon which to maintain the action of replevin against a wrongdoer. That is,' against one who may have dispossessed him or who may have tortiously interfered with his possessory right; but if the defendant has come into possession of the property without-having in any way, trespassed upon plaintiff’s right of possession, then defendants’ possession is as strong evidence of their title as plaintiff’s prior possession is of plaintiff’s title and as the burden of proof is upon the plaintiff he must fail, but if defendants have tortiously taken possession from plaintiff he cannot profit by his own wrong, and, in that case, will not be permitted to-assert a possession thus wrongfully acquired as a defense to plaintiff’s claim under a prior, peaceable possession.
In this case the evidence discloses that plaintiff asserted OAvnership at the time defendants were loading the sand and forbade them taking it without first paying plaintiff therefor. Defendants refused to recognize-plaintiff’s claim and proceeded to take the sand against
This brings us to the crucial point in this case. Was the plaintiff in possession of the sand and did defendants deprive him of that possession? The evidence of plaintiff shows that he had no paper title to the land; that he was a squatter and his only claim was that of possession alone. He had fenced a portion of this land and a part of that which he had fenced and cultivated had caved into the river and been washed away. He cultivated some seventy-five or eighty acres of this land, but had no fence around the land which he cultivated. The evidence on the part of plaintiff shows that in the year just prior to the time this sand was taken by defendants the land on the island was intact over the place from which the sand was taken and that he had cultivated the land that year and that this land had caved in and been washed away and that the sand which defendants took had washed in and during this year 1907 plaintiff was not cultivating at this point, and the evidence indicates that he could not because it was a sand bank, and the point at which defendants took the sand was near the water’s edge and some distance from the edge of the land which plaintiff was then cultivating.
These facts present the question as to whether or not the plaintiff by reason of the fact that he was cultivating land upon the bank adjoining the place from which this sand was taken could be said to be in possession of the sand itself. It is upon this proposition that plaintiff’s claim must rest. We understand the rule to be that when a party has no color of title and must depend upon naked possession alone as proof of his title that the extent of his possession will be confined to the land over which he is exercising actual control. If the land is under fence the fence will define
Our conclusion is that in this case the plaintiff’s possession was confined to the outer lines of the land actually cultivated and did not extend, as he now contends, to the water’s edge. Had defendants gone upon the island and sought to remove timber, soil or sand from a place clearly upon the island but without the boundary of plaintiff’s cultivated land, it is clear that plaintiff could not interfere with them, or prevent their doing so. Had they gone to the land near the pasture and undertook to remove material from the land outside of the pasture fence it is clear that plaintiff could not interfere, and on plaintiff’s own testimony the sand taken by defendants was at the time located outside the line of his actual cultivation, and, for that reason, our conclusion is that plaintiff was not in possession of this sand, and, therefore, had no right to interfere with defendants or prevent them from taking the same. The judgment will be reversed.
