Atlantic & Pacific R.R. Co. v. Freeman

• Citation: 61 Mo. 80
• Parties: ATLANTIC AND PACIFIC RAILROAD COMPANY, Appellant, v. JAMES FREEMAN, et al., Respondents.
• Decision Date: 31 October 1875
• Court: United States State Supreme Court of Missouri

61 Mo. 80

ATLANTIC AND PACIFIC RAILROAD COMPANY, Appellant,

v.JAMES FREEMAN, et al., Respondents.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Newton Circuit Court.

J. N. Litton, for Appellant.

The petition is good at common law. (Hewitt vs. Harvey, 46 Mo., 371; Low vs. Harrison, 8 Mo., 351; Waltham vs. Warner 26 Mo., 145; Garner vs. Hann. & St. Jo. R. R., 34 Mo., 240; Comings vs. Hann. & Cent. Mo. R. R. Co., 48 Mo., 516; Montague vs. Papin, 1 Mo., 757; Schmidt vs. Dinsmore, 42 Mo., 226; Grau vs. St. Louis, K. C. & N. R. R., 54 Mo., 240; Henderson vs. Dickey, 50 Mo. 164; Northcraft vs. Martin, 28 Mo., 470.)

C. W. Thrasher, for Respondents.

The allegations in the petition of plaintiff's ownership of real estate, are not sufficient to show its ownership of the trees, saw logs, etc. There is no averment that the timber was ever standing on plaintiff's land.

SHERWOOD, Judge, delivered the opinion of the court.

In this case there were two counts in the petition. Plaintiff withdrew the first count and by consent of parties the description of land as contained in the first, was to be regarded as incorporated in the second count which was as follows: “Plaintiff also states, that during the months of November and December, 1871, and the months of January, February, March and April, 1872, at divers times, defendants wrongfully received from various persons, to plaintiffs unknown, a large amount of timber, trees and saw logs, of the value of two thousand dollars, which timber, saw logs and trees were wrongfully and without leave, cut, removed and carried away from the premises and lands above described, which were then the property of and owned by plaintiff, and said defendants so took and received said timber, trees and saw logs so cut and carried away, as aforesaid, and wrongfully appropriated the same to their own use; wherefore plaintiff says by said acts and doings of defendants, plaintiff was damaged in the sum of six thousand dollars, being treble the amount of the value of said timber, trees and saw logs, for which amount it asks judgment with costs of suit.”

To this count the defendants demurred, assigning as ground that it did not state facts sufficient to constitute a cause of action. The demurrer was successful, and judgment was entered accordingly.

It is quite clear that the above count, although not good if it is to be regarded as founded upon the statute, (2 Wagn. Stat., Chap. 138) to which, by reason of its claiming damage to treble...