275 S.W. 67 | Mo. Ct. App. | 1925
Plaintiff alleged that he was the owner and in the possession of the following described land in Butler county, to-wit: all of lot 7 in section 36, township 25 north, range 6 east, containing 26 and 58/100 acres; that said land bordered on Black river and formed a part of the bed and banks of said stream. Plaintiff further alleged that between June 1st and October 1, 1921 "defendant wholly without right or authority wrongfully took and carried away two thousand yards of gravel, theretofore lying and being on and comprising a part of said described lands, and wrongfully and without right or authority converted the same to its own use, which said gravel so taken and converted was and is of the reasonable value of fifty cents per yard," etc. The answer is a general denial.
Defendant contends (1) that the petition is fatally defective; (2) that Black river at the point where the gravel was obtained is a navigable stream in the full and complete sense; (3) that error was committed in giving and refusing instructions; and (4) that counsel exceeded legitimate bounds in argument. Plaintiff's cause is primarily bottomed on the proposition that Black river is not a navigable stream in the broad sense, and to the extent of limiting plaintiff's ownership at the low water mark. Plaintiff did not allege that Black river was not a navigable stream. Defendant filed no demurrer, but interposed an objection to the introduction of evidence on the ground that the petition did not allege facts sufficient to constitute a cause of action. After verdict, absent any challenge except an ore tenus
demurrer, every reasonable intendment will be indulged in favor of the sufficiency of the petition, and where omitted allegations may be implied from allegations made in the petition, then the defect of omission is cured after verdict. [Powell v. Rawson Land Co., 221 S.W. (Mo. App.) 765; Shaler v. Van Wormer,
Is Black river a navigable stream in the broad sense along by plaintiff's land? At Poplar Bluff there is a railroad bridge across Black river generally known as and most frequently designated in the record as the "Cat" bridge. An abundance of evidence was introduced to show that Black river is a navigable stream both below and above Cat bridge. A navigable stream in the broad sense where the title to the bed is in the public "is a stream such as will permit and bear the passage of ordinary boats of commerce upon the bosom of its waters." [Hobart-Lee Tie Co. v. Grabner, 219 S.W. (Mo. App.) 975, l.c. 977; State ex rel., Applegate et el., v. Taylor, et al., 224 Mo. l.c. 485; 123 S.W. 892; Wright Lumber Company v. Ripley County,
Defendant makes the point that plaintiff failed to establish that he owned the land described in his petition, and that recovery cannot therefore, be had. Plaintiff did not show an unbroken chain of title from the Government down to him, but he did introduce muniments of title showing that he has at least a shadow of title, and also he showed that he was in possession and had been for several years. Possession alone is sufficient to maintain an action of trespass as against a stranger. [Watts et al. v. Loomis et al.,
The instructions given for plaintiff and defendant covered the issues, and there is no just ground for complaint. Defendant got all that it was entitled to in the instructions, and perhaps more.
There is no merit to the assignment based on the alleged improper argument of counsel. Plaintiff's counsel stated to the jury that the plaintiff was a farmer *353 "just like many of you gentlemen and on the other hand you have a legal fiction, a corporation." — At this point an objection was made to an attempt "to arraign the defendant for being a corporation, and I ask to have the jury instructed to disregard that argument." Thereupon the following occurred: "COURT: I didn't understand counsel to mean there would be a different law for a corporation to what there would be for an individual and of course, that isn't the law. I am sure that counsel has not meant that.
MR. PHILLIP: It is improper for the reason he is trying to prejudice the jury by saying the plaintiff is a farmer just like them on one side of the case and a corporation on the other.
MR. MULLOY: Well, I will take it all back and make apology and start again.
MR. PHILLIPS: I except to the failure of the court to instruct the jury to disregard the statement of counsel for the plaintiff."
We do not think that any harm or prejudice came to defendant because of the remarks complained of.
We have gone carefully through this record, and we find no error of substance. The judgment should be affirmed, and it is so ordered. Cox, P.J., and Bailey, J., concur. *354