Bradley v. West

Decision Date31 May 1875
Citation60 Mo. 59
PartiesWILLIAM BRADLEY, Respondent, v. CHARLES WEST, Appellant.
CourtMissouri Supreme Court

Appeal from Carroll Circuit Court.

L. H. Waters, for Appellant.

Plaintiff in this action must do some act furnishing visible tokens of occupancy. Temporary presence of itself is insufficient. (Miller vs. Northrup, 49 Mo., 398; DeGraw vs. Prior, 53 Mo., 313; Gittings vs. Moale, 21 Md., 135; Stewart vs. Wilson, 1 A. K. Marsh., 255; see also McCartney vs. McMullen, 38 Ill., 241; McCartney's Adm'x vs. Alderson, 45 Mo., 39; Harris vs. Turner, 46 Mo., 438; Miller vs. Shaw, 7 Serg. & R., 129; People vs. Nelson, 13 Johns., 340.) In this case plaintiff merely went on the land, paced off forty acres in the south-west corner with his cane, and made at each corner a mound as large as a man's head, which two days after were not sufficient to locate the land intended to be secured.

M. T. C. Williams, for Respondent.

The evidence of plaintiff's possession was sufficient. (Bartlett vs. Draper, 23 Mo., 409; Schmeiding vs. Ewing, 57 Mo., 79.)

I. Actual possession of lands may be either pedis possessione or a substantial enclosure. (2 Bouv. Ins., § 2193, p. 482.) There may be possession, in fact, of unimproved and uncultivated land. (Wall vs. Nelson, 3 Litt. [Ky.], 398; Langworthy vs. Myers, 4 Iowa, 18; Allcott vs. Pearl, 11 Pet. [U. S.], 412; Powell vs. Davis, 54 Mo., 315.) The entry upon lands with the intention of clearing it and fitting it for cultivation, is such an entry as the jury may be authorized to infer actual possession from. (Humphrey vs. Jones, 3 Mon. [Ky.], 261.) A different doctrine would place the owners of wild and uncultivated lands at the mercy of every intruder and trespasser who might choose to settle upon it. (Miller vs. Northrup, 49 Mo., 400.)

WAGNER, Judge, delivered the opinion of the court.

This was an action of forcible entry and detainer, for a strip of land in Carroll county, and the instructions of the court constitute the only matters of inquiry.

The trial was before the court sitting as a jury, and the first declaration was to the effect that if plaintiff was at any time within three years next before the commencement of the action in peaceable possession of the premises, and whilst so in possession, and without his consent and against his will, defendant took possession, then the finding should be for the plaintiff, and that it was not necessary, to constitute possession of the premises, that the plaintiff should stand upon a part of the premises or keep his tenant there, but that any act done by him thereon, indicating an intention to hold possession for himself was sufficient to give him actual possession.

The second declaration was that if the plaintiff actually and peaceably entered upon the quarter section, which included the land in controversy, under a deed therefor to himself, claiming to own the same, and the land was vacant and unimproved, and the entry was with the intention of claiming and holding the possession, and he did any act thereon indicating an intention to hold and possess the same, then such entry was sufficient to give him the actual possession of the whole tract.

The third instruction declared that if plaintiff paid taxes on the land for a certain number of years, and afterwards made actual entry under a deed and claim of ownership, with the intention of taking possession thereof, the land being vacant and unoccupied, for the purpose of improvement and cultivation, and ascertained the lines and boundaries, and paced off or measured a portion of the tract for purposes of cultivation, and indicated the boundaries thereof, and did any other act indicating his intention to follow up such possession by cultivation or improvement; and while upon the premises actually and openly claimed the ownership and possession, then there should be a finding that the plaintiff was in peaceable possession.

The fourth instruction announced the proposition that if, while the plaintiff was in the peaceable possession of the premises, the defendant, by himself, his agents or servants, entered upon the premises without the consent and against the will of the plaintiff, and commenced to make or made any improvements, or cultivated thereon, against the express commands of plaintiff while upon said land and in actual possession thereof, the defendant was guilty of a forcible entry and unlawful detainer.

The fifth instruction had been substantially given before and needs no consideration.

For the defendant the court declared the law to be:

1st. That before the plaintiff could recover, it was necessary to show by a preponderance of evidence that he was lawfully possessed of the premises sought to be recovered, and that defendant, by force of strong hands, or by threats or other circumstances of terror, entered upon the possession and turned the plaintiff out, or unlawfully...

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21 cases
  • Hillis v. Rhodes
    • United States
    • Missouri Court of Appeals
    • August 20, 1920
    ... ... 528. We cite the following ... authorities on the question of what constitutes possession of ... lands: Barlett v. Draper, 23 Mo. 407; Bradley v ... West, 60 Mo. 59; Miller v. Northrup, 49 Mo ... 397; Leeper v. Baker, 68 Mo. 400; Henniger v ... Trax, 67 Mo.App. 521; Walser v. Graham, ... ...
  • Underwood v. City of Caruthersville
    • United States
    • Missouri Court of Appeals
    • May 8, 1917
    ... ... action. Prendergrast v. Graverman, 166 Mo.App. 33; ... Robinson v. Ramsey, 190 Mo.App. 206; Milem v ... Freeman, 136 Mo.App. 106; Bradley v. West, 60 ... Mo. 59; McCartney's Adm'rx et al. v. Alderson, et ... al., 45 Mo. 35; Catchcart v. Walter, 14 Mo. 18; ... Dennison v. Smith, 26 ... ...
  • McQuoid v. LaMb
    • United States
    • Missouri Court of Appeals
    • October 27, 1885
    ...knew that she was a trespasser, in going back on said premises. Armstrong v. Hendrick, 67 Mo. 542; Kingman v. Abington, 56 Mo. 46; Bradley v. West, 60 Mo. 59; Edwards v. Cary, 60 Mo. 572; McCartney, Adm'r, v. Alderson, 45 Mo. 35; May v. Luckett, 48 Mo. 472; Powell v. Davis, 54 Mo. 315; DeGr......
  • Buck v. Endicott
    • United States
    • Kansas Court of Appeals
    • November 23, 1903
    ...absence, is sufficient to enable them to maintain the action. Powell v. Davis, 54 Mo. 315; Hinniger v. Trax, 67 Mo.App. 526; Bradley v. West, 60 Mo. 59; v. Allenbaugh, 50 Mo.App. 130. (3) Any acts done by plaintiffs showing intention to hold possession, such as fencing, marking lines, locki......
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