131 Mo. App. 457 | Mo. Ct. App. | 1908
This is an action to recover damages for the destruction of eighteen maple trees growing on plaintiff’s premises. He was allowed to go to the jury for the value of only thirteen trees. These trees had been transplanted eight years before from their native forest where they grew wild. On January 4, 1905, they were burnt, it is alleged, by fire communicated to them from one of the defendant’s locomotives. The petition proceeds on the theory of negligence, and alleges defendant so carelessly ran and managed its locomotives that sparks and fire were negligently permitted to escape from the locomotives and fly to plaintiff’s farm and a part of the right of way belonging to the company where it had carelessly permitted dry grass, weeds and other combustible material to accumulate. The answer was a general denial and a plea of contributory negligence in which it was averred plaintiff’s careless management and cultivation of his premises and pastures, and his allowing dry grass and other combustible matter to grow thereon had contributed to the loss. This theory of plaintiff’s right to recover depending on his proving the negligence of the defendant caused the fire, and that contributory negligence on his part would be a defense, was carried through the trial and into the instructions, though we do not perceive that under the law, negligence was of the essence of the case. The ■evidence for plaintiff proved the right of way was overgrown opposite the portion of his farm where the trees
Much is said in the brief for the railroad company against plaintiff’s right to recover, based on the assumption he was not the sole owner' of the land or the trees standing on it. No record evidence as to the state of the title was introduced, but plaintiff testified he owned the entire farm of 268 acres, on which stood a maple orchard, as he styled it, covering about three acres. Said orchard was part of a tract of 168 acres which plaintiff had acquired thirty years before by purchase from his- father. He afterwards conveyed this tract to his wife and she to one Cain, Avho reconveyed it to plaintiff. The maple orchard was on said tract. The position of the company in regard to the title seems to rest on the notion that whatever interest plaintiff had in the farm, was by inheritance from his father, and as plaintiff had brothers and sisters he did not inherit the entire fee. But according to the plaintiff's testimony, his title to only one hundred acres of the farm Avas acquired by inheritance and the trees were not on this tract. Moreover, he had been in peaceable, continuous and undisturbed possession of the entire 268 acres for twenty-one years, claiming to OAvn it. We hold the title to the trees was vested solely in plaintiff.
Only one other point needs investigation. . Both parties agree the measure of damages was the difference between the value of the premises before the trees were burnt and their value afterwards, and likely this view of the law is correct. [Shannon v. Railroad, 54 Mo. App. 223; Gates v. Railroad, 44 Mo. App. 488; White
It is insisted by plaintiff’s counsel this court can look into nothing but the record proper, because the abstract filed by defendant failed to show the filing of a bill of exceptions in the court below. The abstract was amended prior to the submission of the cause and plaintiff’s counsel, though he suggested the defect in the abstract, in his brief wherein the suggestion was made, took up and considered the appeal on its merits, touching every point raised by the defendant. Therefore it appears plaintiff was put to no extra expense or trouble in preparing a new brief or taking any other step in the case in consequence of the amendment of the abstract.
The judgment is reversed and the cause remanded.