Anderson v. Sutton
| Decision Date | 06 October 1923 |
| Citation | 254 S.W. 854,301 Mo. 50 |
| Parties | BEN M. ANDERSON, Appellant, v. T. F. SUTTON |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court; Hon. David H. Harris Judge.
Reversed and remanded.
Conway Elder and Irwin & Haley for appellant.
(1) The court erred in refusing to give plaintiff's requested instruction marked "A," and by giving in its stead upon its own motion, Instruction "D." Instruction "A" was a correct declaration of law, but as modified by adding thereto the words: "but you should not take into consideration any enhanced rental or other increased value of said lands which you may find from the evidence was brought about or was due to any improvements that may have been made upon said land by the defendant in good faith prior to his knowledge or notice of plaintiff's claim to said lands" it became error. Sec. 1834, R. S. 1919. (2) The court erred in giving defendant's instructions numbered 1, 2, 3 and 4. These instructions all embody the same theory of the law, to-wit That if the land was covered with willows at the time defendant took possession, and that it had no rental value with the willows standing there, no matter how trifling the expense of clearing or how valuable the land or what the actual rents and profits actually were, there could be no recovery for such rents and profits. Such is not the law of this State. Stump v. Hornbeck, 109 Mo. 281; Wilcott v. Townsend, 49 Iowa 456; Dungan v. Van Puhl, 8 Iowa, 263; Gardner v. Granniss, 57 Ga. 539; Miller v. Ingram, 56 Miss. 510; Warvelle on Ejectment, p. 589; Hardeman v. Turner, 112 F. 41; State v. Plassmore, 33 S.W. 214; Lieghorn v. Young, 52 F. 431. (3) Where the possession of real property is wrongfully withheld from the owner he is entitled to recover nominal damages without other proof. Halin v. Cotton, 136 Mo. 216; Jones v. Hannover, 55 Mo. 462.
E. C. Anderson and H. D. Murry for respondent.
(1) The court committed no error in modifying plaintiff's instruction marked "A" and by giving in its stead Instruction "D," as Instruction "D" is a correct declaration of the law applicable to the case at bar. Armor v. Frey, 253 Mo. 479; Byrne v. Byrne, 289 Mo. 125; 30 Cyc. 234 B; 19 C. J. p. 1242, sec. 377; 15 Cyc. 207, par. 3; McCarver v. Doe, 135 Ala. 544; Worthington v. Hiss, 16 A. 534; Gibson v. Fields, 79 Kan. 38; Lee v. Humphries, 124 Ga. 539; Adkins v. Hudson, 19 Ind. 392; Hentig v. Redden, 1 Kan.App. 173; Pritchard v. Williams, 106 S. E. (N. C.) 144. (2) The court did not err in giving defendant's Instructions 1 and 2; and these were the only instructions given by the court on behalf of defendant. Instructions 3 and 4 requested by defendant were refused by the court. Instructions 1 and 2 given by the court on behalf of the defendant properly declared the law under the facts in this case and are in accordance with the well-established principle of law and equity in cases of this character. Authorities, supra, and Devine v. Charles, 71 Mo.App. 213. (3) While there are some cases holding that where the possession of real property is wrongfully withheld from the owner he may recover nominal damages without further proof, it does not follow in this case, that this cause should be reversed and remanded because the jury failed to award such damages, as in this case, plaintiff recovered costs without the award of nominal damages. Sec. 1513, R. S. 1919; State to use v. Reybourn, 22 Mo.App. 303; Hess v. L. H. & P. Co., 144 Mo.App. 552; State to Use v. Frolick, 154 Mo.App. 694; State ex rel. v. Harrington, 28 Mo.App. 294.
This is an action in ejectment for the recovery of the possession of a tract of land constituting an accretion to a New Madrid claim in Boone County on the Missouri River and damages for withholding the possession of same, and for monthly rents and profits. The right of the plaintiff to the possession was conceded; and a trial to a jury was had upon the other issues, resulting in a verdict in plaintiff's favor for the possession without damages, and the assessment of the monthly rents and profits at two hundred and seventy-five dollars. From this judgment the plaintiff has appealed.
The final determination of a prior suit between these parties to quiet title to the land explains the defendant's concession as to the plaintiff's right of possession. While the instant case was pending in the circuit court a trial in the suit to quiet title resulted in the plaintiff's favor and upon appeal to this court the judgment was affirmed, 295 Mo. 195. This judgment left for review in this proceeding a determination of the amount of damages to which the plaintiff is entitled for the withholding of the possession of the land by the defendant and the monthly rents and profits.
In 1912 the defendant and S. J. Conley obtained a patent to this land from Boone County. In 1914, the defendant, then in possession of the land, began to clear therefrom the willows, cottonwood and other growing obstructions to cultivation. From 1914 to 1920, he cleared from one hundred to twenty-five acres each year, aggregating an area from two hundred and fifty to two hundred and sixty-five acres, and following each annual clearing planted and raised crops on the land cleared. In addition he fenced the land and built houses thereon. There was a marked variance between the testimony of the witnesses for the respective parties as to the rental value of the land after it was cleared, estimated at from ten to twenty-five dollars per acre from 1916 to 1921 inclusive by the testimony of plaintiff's witnesses; and by defendants witnesses that when cleared the land was worth from seven and one-half to twelve dollars per acre and before clearing it had no rental value. The defendant admitted that during the years 1918 and 1919 his portion of the crops was worth twenty dollars per acre. The court confined the testimony to the reasonable cash rental value of the land in its condition at the time the defendant took possession of same, excluding an offer of testimony by the plaintiff of the actual profits realized therefrom by the defendant; and that the plaintiff's damages were to be estimated upon what was shown to be the reasonable cash rental value of the land estimated as above from October, 1915, or for the five years next preceding the commencement of this action to the time of the trial, unless it was shown that the defendant was holding the possession of same in good faith and without notice of plaintiff's claim of ownership. Under this theory the court instructed the jury that defendant had admitted that he was not notified of plaintiff's claim until March 6, 1920, when the suit to quiet title was brought by plaintiff, and that the plaintiff's right of recovery for the rental value of the land as damages could only be estimated from that date.
Plaintiff offered to show that, during the year 1913, he had a conversation with S. J. Conley, then one of the joint claimants of the land with the defendant, in which the plaintiff told Conley that he was the owner of the land from the bluff to the river. This testimony was objected to by the defendant and was excluded by the court, for the reason stated, that Conley parted with the title to the land in November, 1913, to the defendant, and for the further reason that Conley was then dead. Plaintiff testified that in 1914, he notified the defendant of his claim of ownership in the land. This was denied by the defendant, who stated that he had no notice of plaintiff's claim of ownership until the institution of the suit to quiet title in March, 1920.
The instructions given and refused which are assigned are as follows:
The plaintiff requested the court to instruct the jury that:
Upon which requested instruction the court endorsed the following: "Refused, but given in modified form."
The plaintiff also requested the court to instruct the jury that:
Which instruction the court refused to give.
And the plaintiff also requested the court to instruct the jury that:
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