61 Mo. 68 | Mo. | 1875
delivered the opinion of the court.
This suit was to recover damages for a trespass by a road overseer and bis bands in cutting down a bois Ware fence. The principal defendant pleaded that he committed the trespass alleged in the prosecution of his duty as a road supervisor ; and the other defendants that they were summoned by said supervisor to assist iu opening the road. The pleadings are not very condensed, the evidence quite extensive and the instructions numerous, but the facts in the ease are plain and simple, and may be stated in a few words, the merits of the case depending upon one or two very plain propositions of law; aud we are unable to see any benefit that could result from an attempt to state, even in substance, the contents of a record of two hundred pages.
The plaintiff in this case was the owner of a tract of land in Lafayette county, long anterior to 1861, including among other lauds the west half of the south-west quarter of section 11, township 48, R. 25. Jones, Yokely and Davis were owners of the lands on the other side of the half section line. There was a county road as far as Freedom Chapel, and another through Dobson’s land on the west, but the people in the neighborhood
Parker, the plaintiff, planted his hedges alongside of this road, and all the neighbors seemed to acquiesce by regulating their fences accordingly.
In 1871 a notion became current that this line between the half sections was an erroneous one, and the surveyor who was then in office was ordered at the instance of Jones, and perhaps others interested, to re-survey the line. Bliss, the surveyor in 1870-71 ascertained that a mistake had been committed by his predecessor, Weeden, and established the line some thirty yards south of this road. The road had been traveled and used for fifteen years then. Bliss said that Weeden’s survey was correct, but he had commenced at a corner which was not a true corner. But it is not material whether Bliss’ survey or Weeden’s was correct. We will assume that the last one was the true survey.
It will be perceived that this new survey threw the road, if designed to be as it was, on the line between the half sections ten and eleven, about thirty yards south of the existing road, and thereupon Shackelford, the defendant, at the instance of his co-defendants, Jones and Cole, undertook to correct this mistake and to place this road through the plaintiff’s land, and to cut down his hois d'etre hedges and to stop up the old road. An' injunction was obtained against this from the Common Pleas Court of Lafayette county, but it was disregarded, and this suit was brought to recover damages which this destruction offences occasioned plaintiff.
The verdict of the jury was for $250 damages. The main points in this case are that the plaintiff could not recover in
At the time of the institution of this suit, the land of plaintiff was rented out on a contract with his tenants to pay one-third of the proceeds of the land to plaintiff. The plaintiff continued to be the owner of the land, and of the trees on it, and of the hedges on' it' which he planted and which were made by these trees. This suit was brought to recover damages for the destruction of- these hedges which the landlord continued to own, and which destruction was really injurious to the inheritance.
The exemplary damages allowed by the instructions, and given by the jury, we think were all justified. There was no evidence to show that the defendant, Shackelford, allowed himself to be used by his co-defendants to annoy and harass plaintiff. This was a matter for the jury. That exemplary-damages may be allowed in actions formerly termed actions on the ease, is expressly held in Musick vs. Tower G. & L. R. R. Co., 57 Mo., 21.
Judgment must be affirmed.