123 Mo. App. 356 | Mo. Ct. App. | 1907
(after stating the facts — 1. As to the special plea in bar that the entry on plaintiff’s land and removal of the sand therefrom was by Dittenhoefer under a contract by which plaintiffs gave him the right to do so, suffice to say that there was no proof to sustain this defense. Sullivan swore the arrangement with Cox for sand was made in behalf of Dittenhoefer and not of the railway company; but there is no testimony that Dittenhoefer removed the sand in controversy. The evidence on that issue shows without conflict that the railway company took or was a party, at least, to the taking of the sand. Whatever Dittenhoefer did in the matter was in connection with the Railway Company’s officials and was done to assist in the construction of the roadbed. In fact, though Dittenhoefer was a contractor for the construction of the railroad through plaintiffs’ land, he unquestionably took sand from plaintiffs’ farm outside the right of way to surface the roadbed, pursuant to an agreement which Sullivan assumed to have made with plaintiffs.
2. Complaint is made of the instruction to the jury, given at the instance of the plaintiffs, on the ground that it made the defendant company a trespasser if it entered on the plaintiffs’ land and removed sand without first obtaining the consent of both Cox and his wife; where'as it is said that Cox alone, as head of the family and in possession, would have the right to grant permission for defendant to enter and thereby prevent its conduct from being a trespass. An instruction of nearly the same language was before us on the first appeal. The one
3. The record shows that declarations were requested and given on the issue of treble damages and that the court passed on the facts relating to said issue and trebled the damages. This ruling is assigned for error, defendant contending that the evidence largely preponderated in favor of the theory that it entered under a contract. If this contention were correct, the question would arise whether the entry was under a contract which furnished probable cause for defendant to believe it owned the sand or had a right to remove it. As said above, we do not accept the proposition that any contract would suffice. However it was jor the court to pass on the issue of probable cause. The practice in this State in an action founded on the statute under consideration is for the court, after hearing the evidence adduced before the jury, to treble the damages if the jury finds a verdict for the plaintiff and no probable cause appears. This matter was considered by the Supreme Court in Walther v. Walther, 26 Mo. 143, wherein it was held that whether such practice was right or wrong, it had become the settled rule in this State and left the court the judge both of the law and the fact on the question of a defendant’s probable cause to believe the removal of part of the freehold was lawful. To the same effect are Rouse v. Wood, 57 Mo. App. 650; Brewster v. Link, 28 Mo. 147; Herron v. Hornback, 24 Mo. 492; Ewing v. Leeton, 17 Mo. 461; Le