O'Bannon v. St. Louis & G. Ry. Co.

• Decision Date: 21 February 1905
• Citation: 85 S.W. 603,111 Mo. App. 202
• Court: Missouri Court of Appeals
• Parties: O'BANNON et al. v. ST. LOUIS & G. RY. CO.

85 S.W. 603

111 Mo. App. 202

O'BANNON et al. v. ST. LOUIS & G. RY. CO.

St. Louis Court of Appeals. Missouri.

February 21, 1905.

TRESPASS — TREBLE DAMAGES — PETITION — SUFFICIENCY.

A plaintiff in trespass is not entitled to treble damages under Rev. St. 1899, § 4572, giving such damages for digging up gravel, etc., in which the trespasser has no interest or right, unless the petition alleges that defendant had no interest or right therein.

Error to Circuit Court, Dunklin County; Jas. L. Fort, Judge.

Action by Welton O'Bannon and others against the St. Louis & Gulf Railway Company. Judgment in favor of plaintiffs, and defendant brings error. Reversed.

Omitting caption, the petition is as follows: "Plaintiffs, for their cause of action, state that the defendant is a railroad corporation organized and existing under the laws of the state of Missouri; that said defendant company is now, and was at all the times hereinafter mentioned, operating its railroad through said county of Dunklin. Plaintiffs state that on the 1st day of January, 1903, they were lawfully possessed of the following described lands lying in Dunklin county, Missouri, to wit, the northeast quarter of section twenty-two, township twenty-one north, range ten east; also the fractional part of section twenty-three, township twenty-one north, range ten east, in said county; that on the ____ days of January, and at divers times and on divers days during the month of February, 1903, the said defendant, by and through its agents, servants, employés, and vice principals, with force and arms entered upon said premises of the plaintiffs, and did dig up the sand of the plaintiffs, and, the same being a part of the realty and of the value of five hundred and thirty-three dollars, did carry away said sand, contrary to the form of the statute in such cases made and provided, to the injury of plaintiffs in the sum of five hundred and thirty-three dollars. Wherefore plaintiffs ask judgment for treble damages, as provided by the statute, together with their costs."

The first paragraph of the answer is a general denial. The second paragraph sets up an affirmative defense, which alleges, in substance, that on the ____ day of June, 1903, plaintiff O'Bannon contracted and agreed to sell and convey to defendant five acres of land at $125 per acre; that in pursuance of said agreement, and relying thereon, defendant had the land surveyed, entered upon it in good faith, and removed earth and sand therefrom, to be used upon its roadbed, and after making the survey prepared and mailed a deed to O'Bannon, who returned it, with objections to the description; that a second deed was prepared, and the description of the land made to conform to the wishes of O'Bannon, which deed was taken to him by an agent of defendant, with the request that he execute the same; that he gave no satisfactory answer, but referred the agent to his attorney, from whom likewise the agent received no satisfaction; and thereupon O'Bannon notified defendant to get off the land, which it did as soon as it could after the reception of the notice.

The evidence shows that plaintiffs are the owners of the land, and that they were in possession by a tenant to whom they had leased it. Defendant's railroad runs through a portion of the plaintiffs' land that is in cultivation. On either side of the railroad within the right of way are ditches, the roadbed being about three feet above the general surface. Beginning with the ditch on one side of the roadbed, the defendant cut into plaintiffs' land with steam shovels and made a ditch thereon 413 feet long, 20 feet wide at one end and 30 feet wide at the other, ranging in depth from 6 to 12 feet. The plaintiffs never gave defendant permission to enter upon the land, or to remove the soil and sand therefrom. O'Bannon, on his examination as a witness, stated that he agreed to sell defendant five acres of land at $125 per acre; that the strip he agreed to sell was irregular in shape, and abutted on the defendant's right of way; and at the time he agreed to sell it was understood that the land...