96 Mo. App. 51 | Mo. Ct. App. | 1901
I. Plaintiff’s action was for injury ■to possession of land. It could be sustained, therefore, only on one of two theories: first, that plaintiff was in the actual possession of the land when the trespass was committed; second, that the land was not in the actual possession of any one, but was in the constructive possession of plaintiff as the rightful owner. Hampton v. Massey, 53 Mo. App. 501; Brown v. Hetzel, 87 Mo. loc. cit. 568, and cases cited; Harris v. Sconce, 66 Mo. App. loc. cit. 347.
In the case at bar, plaintiff did not claim actual possession, hence, it was necessary to show that it (plaintiff) had title to the land and the constructive possession which the law attaches, in the absence of adverse possession, to the holder of the legal title.. To sustain this theory, plaintiff attempts to deraign title by a chain of conveyances ending in deeds to it purporting to convey the land. The defendant also gave evidence of a conveyance of the land to one of them, not emanating from any of the grantors of plaintiff or from the government, but which furnished color of title under which, defendants’ evidence tends to show, they were in the adverse possession of the land when they cut and removed the timber thereon. Upon the issues thus presented, the trial court should have determined the question of title in plaintiff under the
II. It is next urged that the court erred in refusing instruction No. 4, supra, defining adverse possession. This point can not be sustained, for an examination of instruction No. 2, given of the court’s own motion, shows that it embodies a sufficient definition of these terms as applicable to the facts and circumstances shown on the trial.
III. It is finally insisted that the court erred in giving instruction No. 3 at respondent’s request, to the effect that the jury should not consider the facts that defendants, under color of title, went upon the land in dispute to cut and remove timber, as evidence’ of adverse possession on their part. Such facts qlearly evidenced a claim of ownership of the land, covered by the deed under which they were performed. Adverse possession, if not predicable of these facts, discerpted