70 Mo. App. 409 | Mo. Ct. App. | 1897
This is an action of forcible entry and detainer. It was commenced before a justice of the peace in St. Charles county on the tenth day of April, 1895, and was subsequently removed by certiorari to the circuit court of that county. The subject-matter of the controversy is a tract of land in St. Charles county. The land is known as “Mobile Island,” and is situated at the confluence of the Mississippi and Missouri rivers. The complaint is that while the plaintiff was in the peaceable and actual possession of the land, to wit, on the twenty-sixth day of March, 1895, the defendants forcibly entered upon the land and took possession thereof by building a fence along the north line of the tract and extending from one river to the other. The defendants admitted that they built the fence, but denied that the plaintiff was in possession of the land at the date of the alleged ouster or at any other time. On the contrary they asserted that they and
At the trial of the cause the evidence introduced by defendants tended to prove these facts: In the early part of the century Mobile island was surveyed and sectionized by the surveyor of the United States, as a part of St. Louis county. At that time the channel of the Missouri river was to the north and it formed the northern and eastern boundaries of the island. A slough separated the island from the main land in St. Louis county, and another slough separated it from “Hog island,” which lay a little to the north. This was the condition of the land until 1869 or 1870. In 1865 George Sehweigler, the father of defendants, and his brother, Andrew, bought the island from its then owners. They took immediate possession of it and commenced to improve it. In 1867 Andrew sold his interest to George. George lived on the land until 1876. During the time he cleared and put in cultivation over one hundred acres, planted out orchards, and built three dwelling houses. In 1869 or 1870, the channel of the Missouri river changed to the south, leaving Mobile and Hog islands on the St. Charles county side of the river. Immediately thereafter the channel began to encroach on Schweigler’s farm and by 1876 the improved land and the houses were washed away. Sehweigler left the island in the fall .of 1876, and died in the city of St. Louis the following year. His children continued to live in St. Louis. After their father’s death they continued to exercise acts of ownership over the land. In 1878 and 1879 they cut considerable cord wood on the land and shipped it to St. Louis. In 1880 and 1881, they paid the taxes and frequently visited the land for the purpose of warning off trespassers. In 1882 they leased it to a man by the name of Leslie, who built a shanty on it, cleared out a
The evidence offered by plaintiff tended to prove these facts: In April, 1888, the plaintiff obtained a quitclaim deed to certain Jands described as situate in “Missouri point in St. Charles county and state of Missouri, in township 47, ranges 7 and 8 east.” The
At the instance of the plaintiff the court properly instructed the jury as to the issues in the case, that is, that the plaintiff at the time of the alleged ouster must have been in the actual and peaceable possession of the land, and that the defendants entered therein against his will and ousted him from the possession thereof. At the instance of the plaintiff the court gave the following additional instructkms:
“(3) And the court further instructs the jury that, if they find from the evidence that Cary Howff and wife and John Dow and wife, by deed dated April 4, 1888, conveyed to the plaintiff, Eli Keen, a large tract
“And if the jury further find from the evidence that at all times since the plaintiff took such actual possession of a part of the land described in his said deed from Cary Howff and John Dow and wife, in 1888 or 1889, he has in person or by his tenants been in the actual possession of said lands, using, cultivating and growing crops thereon, then the plaintiff was in the' actual, peaceable and exclusive possession of all the land embraced in his said deed, including the land described in the complaint, excepting only such parts thereof as other persons had taken possession of since 1888 or 1889, by actual inclosure or cultivation, and if the jury find the facts as stated above, then the fact that the heirs of George Sehweigler, deceased, have paid taxes on the lands in dispute or a part thereof, and that the defendants, George Sehweigler and Mike Sehweigler, made contracts with one Golike for cutting willows or brush on said lands in the years 1891 and
“(9) The court further instructs the jury that, if it appear from the evidence that the plaintiff, Eli Keen, was in the actual, peaceable and exclusive possession of the lands in dispute, by means of his said fence, and using the same as a pasture for grazing horses and cattle, as defined in the preceding instructions, then the making of contracts, authorizing parties to cut brush on said lands and the payment of taxes thereon by the defendants, did not deprive the plaintiff of his actual, peaceable and exclusive possession of said lands, nor did such facts restore defendants to the possession thereof.”
The court gave the following instructions for the defendants:
‘ ‘First. The jury are instructed that the possession necessary to be shown by the plaintiff before the defendant can be convicted of the forcible entry and detainer charged, is a real bona fide possession and not a mere sham or nominal possession for the mere purpose of compelling the defendant to institute an action in ejectment by taking nominal possession merely. And to determine this question, the jury must take into consideration all the acts and declarations of plaintiff in regard to such possession as have been introduced in evidence.”
“Second. The jury are instructed that, in order to recover in this action, plaintiff must show to the satisfaction of the jury, that he was in the actual, peaceable, and exclusive possession at. the time of the alleged entry by defendants, and that a mere scrambling or interrupted possession is not sufficient.”
“Fifth. If the jury believe from the evidence that the defendants were at any time prior to the alleged forcible entry and detainer, in lawful, peaceable possession of the premises, then such possession is presumed to continue until the contrary is shown, and the burden of doing this rests upon the plaintiff, and unless he does so to the satisfaction of the jury, the ■ verdict must be for the defendants.”
“Sixth. The jury are instructed that the payment of taxes and having the land in question surveyed and thus ascertaining the lines, boundaries, and quantity thereof, and the cutting of timber and brush thereon, from time to time, and the putting of parties on the land for the purpose of protecting the same against trespassers and visiting o'f said lands from year to year by the owners thereof for the purpose of supervision and control up to the time of the alleged forcible entry and detainer so as to plainly indicate to the public that said lands were under the control and management of the defendants, then said acts are sufficient to constitute such possession by defendants, as will defeat plaintiff’s action and the verdict must be for defendants.”
The court gave the following instruction on its own motion:
“It is not necessary that a person should be and remain upon a tract of land at all times or actually inclose it by a fence in order for him to be in the actual and peaceable possession thereof, but what the law requires to constitute such possession, is that those acts or things should have been done upon the land and it subjected to such a use considering its condition and the purposes to which it might be applied, as would advise and notify the world, that some person was then engaged either in using or had been using said land with no appearance of an abandonment of such uses, for some purpose to which the land might be applied. When such facts are shown or can be reasonably and satisfactorily drawn from the evidence then a tract of land is as much in the actual occupancy of the one as as if he remained personally on the land at all times.”
The jury returned a verdict for the defendants. The plaintiff has appealed. He complains of the action of the court in the admission and rejection of evidence; that the defendants’ instructions and those given by the court of its own motion are erroneous, and that the
The instruction given by the court of its own motion announced the correct rule.
Other questions are presented and argued by counsel, but it is believed that what has been said fairly disposes of all of them adversely to plaintiff. The judgment will therefore be affirmed.