Boyer v. Williams

• Decision Date: 31 May 1838
• Court: Missouri Supreme Court
• Parties: MICHAEL BOYER & WILLIAM BOYER v. JAMES WILLIAMS.

5 Mo. 335

MICHAEL BOYER & WILLIAM BOYER

v.JAMES WILLIAMS.

Supreme Court of Missouri.

May Term, 1838.

COLE, for Plaintiff in Error. 1. The Circuit Court erred in refusing to give the instructions asked by defendants. 2. The court erred in refusing a new trial; and 3. The court erred in giving judgment for plaintiff below, which should have been rendered for defendants.

Then, as to the first error assigned, that is to say, the refusal of the Circuit Court to instruct the jury as required by defendants, I hold it to be clear law, that the United States have complete title to the public land, and complete title to everything growing in the public land, and that when an individual purchases land from the United States, such person, under the laws of the State, acquires a lawful right to the possession of the land so purchased, and everything growing in such land. 3 Kent's Com. 307. He can have his action of ejectment to recover the possession, rents and profits of the land. Mo. Laws, 234, § 2; 281, § 28. The defendants surveyed the land in November, 1836, at which survey Williams was present, and removed from the land in the winter. The relation of landlord and tenant, does not exist between the United States and squatters upon the public land. Williams was a squatter, and a tort feasor, with a knowledge of the law that he was a tort feasor; that he had no rights there, and that he was subject to ouster from the land every day by the United States, or a purchaser thereof from the United States. His entry upon the land in July and forcibly cutting the wheat, was a trespass upon the rights of the defendants below, and for which, at common law, Williams might have been indicted. The severance of the wheat from the land could not pass the right thereof to Williams, nor could the taking of the wheat by plaintiffs in error confer upon him a right to recover from them.

In order to recover in this action, the plaintiff must show two things: 1st Property in himself; and 2nd. An unlawful conversion thereof by defendants. Here Williams has failed to show property in himself, and the conversion of the defendants ceases to be a subject of inquiry. The law with regard to emblements will not apply to this case, because to give a legal right to emblements, in the first place the relation of landlord and tenant must exist; in other words, the sowing of the land by Williams must have been lawful, that is to say, he must have been at the time lawfully possessed of the land. Coke in his comments on Littleton says, that “where the estate of the lessee, being uncertain, is defeasible by a right paramount, then he that hath the right paramount, shall have the corn.” Coke's Lit, 55, No. 6; 4 Kent's Com. 71. Again: If a disseizor sow the ground and sever the corn, and the disseizee re-enter, he shall have the corn, because he entereth by a former tiller, and severance or removal of the corn altereth not the case. In the case of Davis v. Connop, it was adjudged that trover lay against an out-going tenant for corn cut by him after the expiration of his term, although sown by him before that time, under the notion of his being entitled to an away-going crop. Price Exch. R. 53; 1 Chit. Plead. 149; Wilde v. Cantillon, 1 Johns. Cas. 123. These authorities show conclusively that when the possession is unlawful, that the right to emblements cannot exist, and it is respectfully submitted, the possession of Williams of the land upon which the wheat was grown, was unlawful possession. The Circuit Court, therefore, erred in refusing to instruct as required by plaintiff in error. The second error assigned is, the refusal to grant a new trial. The record shows that the plaintiff gave in evidence to the jury, to prove the damages sustained by plaintiff by reason of the conversion, and without this proof the jury could find none; yet they did find damages. Their verdict, therefore, should have been set aside, because the finding was without evidence, against evidence, and against law. The Circuit Court, therefore, erred here also. But in conclusion, what would be the effect of a decision in favor of Williams? It would be precisely equivalent to a repeal of the first clause of the second section of the law regulating the action of ejectment, and the proviso to the 28th section of the law regulating forcible entry and detainer, and oust the United States from the possession and disposal of the public land--Laws Mo. p. 234, 16, 281. It would establish the doctrine that the relation of landlord and tenant exists between the United States and persons settled on the public land, and that a person so settled is entitled to an away-going crop, as against the United States, and as against a purchaser from the United States. The third error is, rendering judgment for Williams, when judgment should have been rendered for plaintiffs in error. This has been already fully considered.

FRISSELL, for Defendant in Error. At this time it will hardly be contended that the settler on public land is a trespasser, if so, he is a legalized trespasser, and such trespasses are encouraged by the owner of the public lands. The numerous and repeated pre-emption laws show that the United States wish and expect people to settle upon and cultivate public lands; and if so, they do not intend that settlers shall be driven off, and the fruits of their labor taken from them when a person enters the land settled upon. The decision of the court in the case of James & Massie v. Snelson, carries the principle here contended for as far as required; 3 Mo. R. 393. And that case goes farther than this, for Massie was not a cultivator of public lands, and his acts were legalized by the laws of Congress, by implication only, if at all. The cultivation and possession of public land, by every person who chooses to cultivate it, are constantly recognized by the laws of Congress; but the cutting of wood and timber from public lands, never has, to my knowledge, been directly approved of by acts of Congress; and in this lies the difference between the present case and the case of James & Massie v. Snelson. It will not be denied on the part of the plaintiff below, that the man who pays his money for, and acquires a title to, a piece of public land, is entitled to the profits arising from such land, from the date of the certificate of entry; but it is not conceded that that man can forcibly intrude upon the possession of...