Hampton v. Massey

53 Mo. App. 501 | Mo. Ct. App. | 1893

Bond, J.

— This was an action for trespass for the pulling down and carrying away of a fence, placed on certain premises alleged to belong to and in possession of plaintiffs. The defendant admits the tearing down and removal of the fence, and claims that it was on his own land. The law on this subject is well settled that an action of trespass can only be maintained where the plaintiff is in the actual or constructive possession ■ of the land whereon the trespass is committed. If the defendant is in possession, the remedy is by ejectment. Brown v. Hartzell, 87 Mo. 564, 568; Moore v. Perry, 61 Mo. 174. Constructive possession is annexed by law to the legal title, where there is no adverse occupancy or holding. The only question presented in this case is the sufficiency of' the acts done by defendant to establish his possession, since, if that is shown, the judgment in his favor must be affirmed. The evidence tended to show that the defendant claimed to own the property under a deed and survey thereunder made in 1885, when stones were placed at the corners of the said survey, and a fence. erected on the line of the survey between the premises claimed by the defendant and the adjoining owner; that this owner and others warned plaintiffs that the premises in question belonged to the defendant about the time the plaintiffs constructed the fence thereon, and that the defendant so notified plaintiffs. Circumstances were also shown of occupancy of the other portions of the survey, and sales thereof by the defendant.

We are not prepared to say that this evidence was insufficient to establish possession -of the strip of land in dispute in the defendant, to the extent of relieving him from liability for trespass in removing the fences put thereon by plaintiffs. It was held, in Kennedy v. Pruitt, 24 Mo. App. 414, “that actual possession of the premises, or of part of the premises under color of title for the whole” was sufficient to establish the possession to the whole in an action of unlawful detainer. See also Miller v. Northup, 49 Mo., 397. Bartlett v. Draper, 23 Mo. 407, 409. The testimony adduced by the defendant tended to bring his possession within the protection of this rule. The trier of the facts so found, and we cannot, therefore, interfere with the finding on this issue.

This relieves us from the consideration of the point made by the plaintiffs, that, there being no evidence tending to show possession in the defendant, the right of possession was one attached to the holder of the title, and that the title of the plaintiffs appeared from a plat of calls to embrace the land in controversy. If we were permitted to discuss that point, it would be difficult to establish plaintiffs’ contention in that respect from the plat and several descriptions filed in their abstract.

"We have examined the instructions given, and do not find that they contain any reversible error. The two requested by plaintiffs, as to the effect of the survey made by them and the “greater weight” to be given the testimony of the private surveyor, were properly refused, as singling out a particular fact, and as giving too much credit to a particular witness. The rule as to expert. testimony is thus stated by the supreme court in Thompson v. Ish, 99 Mo. 179: “It is, of course, for the court to determine in the first. instance whether a witness who is offered as an expert possesses the proper qualifications, but the value of the evidence which the witness may give in a question for the jury.”

It results, therefore, that the judgment herein must be affirmed. So ordered.

All the judges concur.