Bergmann v. Vogt's
| Decision Date | 01 March 1913 |
| Citation | 154 S.W. 449,172 Mo.App. 61 |
| Parties | WILLIAM BERGMAN, Respondent, v. HENRY VOGT'S ADMINISTRATOR, Appellant |
| Court | Missouri Court of Appeals |
Submitted January 10, 1913.
Appeal from Warren Circuit Court.--Hon. James D. Barnett, Judge.
REVERSED AND REMANDED.
T. W Hukriede, J. W. Delventhal and E. Rosenberger & Son for appellant.
(1) After timber is severed from the soil it is no longer real estate but personal property, and an action for trespass will not lie for its removal. Annuity and Trust Co. v Mangold, 94 Mo.App. 125; Land Co. v. Watson, 125 Mo.App. 554. (2) Possession of land is sufficient to maintain an action of trespass, but the defendant may dispute plaintiff's possessory right by showing that the title and possessory right are vested in himself. Barbarick v Anderson, 45 Mo.App. 370; Fuhr v. Dean, 26 Mo 116; Cox v. Barker, 81 Mo.App. 181; Levy v. McClintock, 141 Mo.App. 593.
--This action was commenced before a justice of the peace, the statement counting on trespass in breaking and entering the premises of plaintiff by defendant and removing therefrom certain logs and firewood. On application of defendant the cause was transferred from the justice of the peace to the circuit court, on the ground that title to real estate was involved. At the trial before that court and a jury, there was a verdict and judgment for plaintiff for ten dollars, from which latter defendant, interposing his motion for a new trial as well as one in arrest of judgment and saving exception to the overruling of these motions, duly perfected his appeal to this court. Pending the submission of the case here, appellant died and his death being suggested, the cause was revived in the name of his administrator, the latter duly entering his appearance.
Counsel for appellant make nine assignments of error; one of them that error was committed in allowing the amendment of the petition, as it is called and in failing to strike out the amended petition. We see no error in this, the cause going to the circuit court on certification and not by appeal, and while this is assigned for error, no argument is here advanced nor authority cited in support of it.
As their first point counsel for appellant argue that after timber is severed from the soil, it is no longer real estate but personal property and that an action for trespass will not lie for its removal. That proposition is correct, provided no trespass upon the property of another was committed in taking it. But the averment here is that the close of plaintiff, the real estate, was in his actual possession and, as the testimony shows, in his possession for over ten years and all under fence, and that defendant broke and entered the close to take the logs. That was a trespass.
It is further argued that the court erred in submitting to the jury as a fact to be found, whether defendant had broken down the fence, counsel claiming that there was no evidence that defendant had done this. It is true that there was no direct testimony to the effect that defendant broke down or directed the breaking down of the fence...
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