Miller v. Northup

• Citation: 49 Mo. 397
• Parties: WILLIAM J. MILLER, Respondent, v. CLARK NORTHUP, ANDERSON SCROGGINS AND O. A. TURNER, Appellants.
• Decision Date: 29 February 1872
• Court: United States State Supreme Court of Missouri

49 Mo. 397

WILLIAM J. MILLER, Respondent,

v.CLARK NORTHUP, ANDERSON SCROGGINS AND O. A. TURNER, Appellants.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Sullivan Circuit Court.

G. D. Burgess, for appellants.

The evidence shows that the land in controversy was, at the time appellants entered, uninclosed, no person residing on it, nor was any part of it in cultivation, nor was there anything connected with the property which indicated to the public that any person claimed to be in possession of the premises. It was a smooth prairie tract, entirely barren of improvements of any kind or description. There was no actual possession as distinguished from constructive. An actual possession is required. (Brown v. Dean, 9 Mo. 298; Holland v. Reed, 11 Mo. 605; McCartney v. Mullen, 38 Ill. 237; McCartney's Adm'r v. Alderson, 45 Mo. 39.)

Brownlee, Easley & Mullins, for respondent.

Actual occupancy is not necessary to sustain an action, and actual possession may be shown by any act of possession. (Langworthy v. Myers, 4 Iowa, 18; Roberts v. Long, 12 B. Monr. 194; Campbell v. Thomas, 9 B. Monr. 82; Bell v. Longworth, 6 Ind. 273.)

WAGNER, Judge, delivered the opinion of the court.

This was an action of forcible entry and detainer, brought by the plaintiff against the defendant, to recover the possession of a tract of land lying in Linn county. Before the justice of the peace plaintiff had judgment, and on appeal to the Circuit Court the finding was again for him. The record shows that the plaintiff purchased the land, and within a short time thereafter had it surveyed and the corner-stones established; that during that year and the year following he cut hay upon the land, and permitted no person to use it without his consent. After his purchase he had it assessed in his own name and paid taxes on it. The evidence further tended to prove that the plaintiff had a hay-rick on the land when the defendants took possession, and that he had permitted an adjoining proprietor to build a fence on the east line of it for the purpose of planting a hedge.

The only point raised was whether this constituted sufficient possession to entitle the plaintiff to maintain the action for forcible entry and detainer. The court, at the instance of the plaintiff, in substance instructed the jury that if they believed from the evidence that the plaintiff was, at any time within three years next before the commencement of the action, in peaceable possession of the premises, and while so possessed thereof, and before the action was commenced, the defendants, without his consent and against his will, entered into and took possession, then they should find for plaintiff; and that, in order to constitute possession in the plaintiff, it was not necessary that he should stay on the land, or keep agents or servants there; but that any act done by himself on the premises, indicating an intention to hold the possession thereof in himself, was sufficient to give him actual possession.

There was a further instruction declaring that if the fence built on the line of said land was built with the consent of the plaintiff, such building was not a possession adverse to the plaintiff, but might be considered as tending to show possession in him.

The court, at defendants' request, told the jury that before they could find for the plaintiff they must believe from the evidence that, at the time of the alleged entry and detainer of the premises by the defendants, the plaintiff was in the actual possession thereof; and that, if they believed that the person who built the fence was in the actual possession of any part of the premises, then they would not take such possession into consideration in making their verdict. The court, of its own motion, gave an additional instruction, the purport of which was that to enable the plaintiff to maintain his action, his possession must have been actual as distinguished from constructive; that the premises, at the time of the alleged entry and detainer, must have furnished visible tokens of occupancy. Some of the...