This is а suit to recover damages for the willful removal of timber from certain uncultivated land in New Madrid county, brought against P. F. Sherman, R. F. Sherman and P. F. Sherman, Jr., alleged to have been partners. Defendant, P. F. Sherman, filed a general denial, the other defendants failing to answer. The cause was triеd before a jury resulting in a verdict and judgment for plaintiff in the sum of six hundred seventeen and 50/100 dollars. Defendants have appealed.
Error is assigned in refusing an instruction in the nature of a demurrer to the evidence and in the admission of evidence. Defendant, P. F. Sherman, offered no written instruction in the nature of a demurrer to the evidence but,
ore temos,
moved the court to so instruct the jury. A demurrer of this character does not meet the requirements of the statute that all instructions shall be in writing. [Sec. 1417, R. S. 1919; St. Louis Union Trust Co. v. Merritt,
. However that may be, the question of error in the admission of evidence is before us. The evidence сharged to have been erroneously admitted relates to the testimony of plaintiff as to his ownership of the land from which it is alleged defеndants took the timber in question, and the testimony of the surveyors as to the boundary line *125 between the lands of the respective parties. If this evidеnce was properly admitted there can be no question that the case was one for the jury.
The boundary line in dispute in this case lies between section 36 and section 35 in Township 12 and between section 1, and section
2,
in Township 22, all in Range 12, New Madrid county. Under the allegations of the petition plaintiff claimed to be the owner of the standing timber in said sections 36 and 1 (which adjoined said sections 35 and 2). He attempted tо prove ownership of said sections, over defendants’ objection, by his own testimony. No documentary evidence as to ownership wаs offered. It is true, as defendant contends that ownership of real estate or-- standing timber cannot, ordinarily, be proven by parol evidеnce. [Frazier v. Bryant,
We come now to the error assigned in the admission of the evidence of three surveyors who testified for plaintiff. It seems plaintiff claimed a certain drainage ditch was the section line and that defendant cut the timber in question East of that line. Francis Steel, County surveyor, testified that he “run the line” between sections 35 and 36, starting from a known government corner at the' northwest corner of section 25, running thence South two miles to the township line and thence East one mile to Range 12. He admitted there was no known government corner between sectiоn 35 and 36. His testimony was objected to as not being the proper method to establish a lost corner. He also testified that the ditch was the dividing line between section 35 and 36 and that the established government corner had been “dug up by the dredge ditch;” that if the statutory method of establishing the lоst corner had been used it would have been within a few feet of the point he established as the corner. Similar testimony was given by W. B. Rossiter and Isаac Barnett, surveyors.
*126 Defendant offered parol evidence to prove the true line between sctions 35 and 36 and 1 and 2, was in line with the MсCord fence (about four rods East of the ditch), and that he had not cut timber East of that line.
It is defendants’ contention that, since the statutes of Missоuri provide the manner of establishing lost corners and since that method was not followed by the surveyors who testified for plaintiff, it was error to admit their testimony. We do not so understand the Missouri decisions on the question. In Krider v. Milner,
The case of Simpson v. Stewart,
Defendant offered evidence of other witnesses as to the location of the line and there wаs' “unofficial” evidence
pro
and
con
upon the
*127
question. It thus became a question of fact for the jury and their determination of that question must be taken as final. [Fette v. McCooley,
Finding no error the judgment is affirmed.