Stoddard County v. Malone

115 Mo. 508 | Mo. | 1893

Beace J.

This an action of trespass instituted in the circuit court of Stoddard county on the tenth day of November, 1881, taken by change of venue to the circuit court of Butler county in October, 1882, and tried in that court on an amended petition filed on the eleventh of May, 1888, in which for cause of action it was substantially charged that on the tenth day of November, 1876, and at divers other times the defendant without leave and wrongfully entered upon certain lands therein described, of which the plaintiff was the owner, and did cut down and carry off and cause to be cut down and carried off divers trees and timber of the plaintiffs, which the said defendant converted to his own use, of the value of $2,000, for which amount judgment was asked. The answer was a general denial. The case was tried by the court without a jury.

The plaintiff introduced in evidence a certificate of the register of lands, showing the selection of the lands described as swamp lands under the act of congress, approved September 25,1850, and a patent from the state of Missouri therefor to the county of Stoddard, under the act of the legislature approved March 10, 1869, and parol evidence tending to prove that during the years 1876, 1877 and 1878, the defendant was operating a saw mill on Little River in the neighborhood of these lands; that at that time the land was vacant, unimproved timber land; that during that period sundry persons at divers times entered upon these lands, cut down a large number of valuable treees, cut them up into logs and posts and hauled them to said mill, where they were sawed into lumber suitable for market by the defendant and the lumber thereafter sold or otherwise disposed of by him for his own. profit. That the timber was so cut and hauled to said mill by such persons from these lands either as his-employees, by his direction, or, at all events, with his knowledge and consent.

The court, at the close of plaintiff’s evidence-sustained a demurrer thereto and rendered judgment for the defendant, from which the plaintiff appeals.

I. The plaintiff’s evidence was sufficient to show title to the premises. Linville v. Bohanan, 60 Mo. 554; Mitchell v. Nodaway, Co., 80 Mo. 257; Pool v. Brown, 98 Mo. 676; 2 Revised Statutes, 1855, sec. 1, p. 1005; Acts, 1857, p. 32; Acts, 1869, p. 66.

II. The plaintiff being the owner of the land and no other person being in the'actual occupancy thereof, can maintain its action for the injury complained of. Brown v. Hartzell, 87 Mo. 564 and cases cited.

III. The facts stated in the amended petition constitute a good cause of action for trespass on real estate, in which plaintiff only sought to recover single-damages, and which would not be barred within a less period than five years. Revised Statutes, 1879, sec. 3230. The facts stated in the amended petition are-substantially the same as those stated in the original petition. The evidence tended strongly to prove the cause of action stated, and we find nothing to warrant the action of the court in sustaining the demurrer to the 'evidence. ,

In order to sustain the judgment, counsel for respondent argue that the . action was a statutory one for triple damages, and that the evidence did not. tend to prove that trespasses complained of were committed within three years next before the filing of the original petition. The petition itself, the substance of which has been given, is a sufficient answer to this, contention, but even if the argument were sound, it can avail the defendant nothing, as there was no plea of the statute of limitations in the case. In order to make the statute available as a defence it must be pleaded. Murphy v. DeFrance, 105 Mo. 53; Hunter v. Hunter, 50 Mo. 445; Orr v. Rode, 101 Mo. 387.

The judgment will be reversed and the cause remanded for new trial.

All concur except Barclay, J., absent.