Campbell v. King

32 Mo. App. 38 | Mo. Ct. App. | 1888

Per Curiam.

— The chief obstacle to defendant’s contention is, the uncertainty as to the location of the one acre of land reserved in the judgment in partition. Unless ’the surveyor could go upon the land with the description furnished by the decree, and from data therein, with the aid of extrinsic evidence, find and locate the acre, the description must fail for uncertainty. It may be conceded to defendant that the fact that there was but one graveyard on the land would enable a surveyor to locate the spot around which the one-acre tract should Jbe drawn. It may be further conceded, that in the absence of any legal or natural obstacle, the one acre should be laid off in a square including the existing graveyard. But when the surveyor went on to the ground he found that, in order to accomplish such result, he had to fix the southwest corner of the acre in the center of the public highway. And, therefore, under this plan, in order to secure to the heirs in common the full benefit of the reservation, it would be necessary to appropriate to private use a part of the public highway, without having the public consent. This, of course, he could not do. While the heirs might by agreement, properly authenticated, establish any boundaries they saw fit, outside of the public highway, for the one acre, neither the surveyor, nor a part of the heirs, without plaintiff ’ s cooperation, could do so.

Then we are confronted with this state of facts, if we are to recognize as the graveyard the one-half acre inclosed with fence at the time of the partition suit, it is not practicable to lay off the one acre in a square with the half-acre as the center. How then is the one acre to be located.? In what shape is it to be surveyed ? Where is to be the initial point of the survey ? These are questions the surveyor had no right to answer. They are doubts and uncertainties he could not solve. It seems to us that in this state of the case nothing short of a consensus among the heirs could give validity to the act of the surveyor. It is not apparent to us how a court could adjust this controversy.

I. At all events, we are not called upon in this action to do so. In the situation of the property at the time of the alleged trespass it cannot be maintained that the fence destroyed was on land owned in common by the plaintiff and defendant. It devolved on the defendant to show that the act of spoliation was committed on the reservation. Every part of the forty-acre tract belonged to the plaintiff, except such as was in fact and law reserved by the decree. The fence at the time of its destruction was in plaintiff5 s possession.

If defendant could cut down the fence within twenty and seventeen feet of the southwest and southeast corners of the graveyard fence,- at what point of distance therefrom might -plaintiff erect a fence on his forty acres where it would be- safe from the axe of the defendant? No one can say what direction the one-acre measurement shall take from the center of the present graveyard fence, after it is demonstrated that, taking the fence around the half-acre as the center, a square ■cannot be run so as to inclose one acre without appropriating a part of the public highway.

It is wholly unreasonable, as it would be violent, to suppose it was within the contemplation of the parties to the partition suit that the southwest corner of the ■one acre should be located in the public road. In view of the fact that the graves were in the northeast corner of the one-half-acre inclosure, it would be much more reasonable to hold that the southwest corner of the half-acre fence was a proper point from which to run the lines of the one acre in a square, running north and east from said corner. This would place plaintiff’s fence, ■cut by defendant, on his forty acres outside of the reservation.

In any view we can take of this case the action of ■defendant cannot be justified. Having admitted his act of spoliation, it devolved on him to show that it was committed on the reservation ; and having failed to do so, the court would have been justified in directing a verdict for the plaintiff.

II. It is urged by defendant, as a ground of reversal, that there are several counts in the petition, and several trespasses, on which there should have been separate verdicts, whereas the jury returned a general verdict. We held in Loomis v. Railroad, 17 Mo. App. 341, that where the action arose in a justice’s court a general verdict is good. When that opinion was written, the case of Bricker v. Railroad, 83 Mo. 391, was not reported, and it had escaped the attention of the writer of the opinion, who was a member of the supreme court commission at the time Commissioner Martin wrote the opinion in Bricker v. Railroad. This, perhaps, wás attributable to the fact that the question was only briefly discussed in the Bricker case.

But it is not necessary in this case that we should •choose between the two opinions, on this rule of practice. The rule invoked by appellant applies only where several distinct causes of action exist and are stated in separate counts. If there is but one cause of action, although set out in several counts to meet any possible state of facts developed in the evidence, if there is one good count in the petition, a general verdict will be upheld. Brownell v. Railroad, 47 Mo. 239; Owens v. Railroad, 58 Mo. 394.

There was in this case but one cause of action shown by the evidence. ■ While the plaintiff testified that his fence was twice cut, the only proof of such act having been committed by defendant applied to one and the ■same occasion. The amount of the verdict shows that the jury found but one act and one trespass ; and that they found their verdict on the common-law count.

The damages sustained and assessed are little more than nominal. The court, on the maxim, de minimis non curat lex, will not remand the case, under such circumstances, on the bare possibility that a technical error may have been committed.

.Judgment affirmed.