Campbell v. Brown

• Court: Missouri Court of Appeals
• Writing for the Court: Cox
• Citation: 130 S.W. 50,146 Mo. App. 319
• Decision Date: 07 July 1910
• Parties: CAMPBELL v. BROWN et al.

130 S.W. 50 146 Mo. App. 319 CAMPBELL
v.
BROWN et al. Springfield Court of Appeals. Missouri. July 7, 1910.

1. PUBLIC LANDS (§ 31) — TITLE BY OCCUPANCY.

The only title that may be acquired to land constituting an island recently formed in the Mississippi river, and not included in any government survey, and not claimed by the government or by any county or state, is the title of occupancy.

2. REPLEVIN (§ 8) — RIGHT TO SUE — POSSESSION.

Prior possession is sufficient to support replevin against one who dispossessed the possessor, or who tortiously interfered with his possessory right.

3. REPLEVIN (§ 70) — TITLE — BURDEN OF PROOF.

Where one came into possession of property without trespassing on another's right of possession, the burden of proof to show title is on the latter.

4. ADVERSE POSSESSION (§ 98) — EXTENT OF POSSESSION.

Where one has no color of title and depends on naked possession alone as proof of title, the extent of his possession is confined to the land over which he is exercising actual control, and where the land is fenced the fence defines the line of the possession, and where it is cultivated the line of cultivation defines it, and the possession cannot extend beyond the line of actual physical occupancy.

5. ADVERSE POSSESSION (§ 98) — RIGHTS ACQUIRED — EXTENT OF POSSESSION.

A squatter on an island recently formed in the Mississippi river, containing about 300 acres not included in any government survey, fenced a part of the land and cultivated about 75 acres which were not fenced. There was a growth of willows and cottonwood between the cultivated land and a sandbank. Held, that his possession was limited to his actual occupancy, and hence could not maintain replevin against one taking sand outside of such limits.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Arch Campbell against Charles Brown and another. From a judgment for plaintiff, defendants appeal to the St. Louis

[130 S.W. 51]

Court of Appeals. Transferred to Supreme Court. Reversed.

Ward & Collins, for appellants. Jere S. Gossom and Rice A. Pierce, for respondent.

COX, J.

This is a suit in replevin instituted before a justice of the peace by respondent to recover from appellants one barge load of sand. By the judgment of the justice the plaintiff was awarded possession of the property, together with costs, and defendant appealed. The cause was tried in the circuit court, de novo, August, 1907, by the court, sitting as a jury, where respondent again obtained judgment, and defendant has appealed to this court.

The sand in controversy was taken from a sand bar along the bank of an island of which plaintiff claimed possession. The island from which the sand was taken is situated in the middle, or near the middle, of the Mississippi river between Missouri and Tennessee. It is known as the Wolverine Island and contains from two to three hundred acres of land. The island formed there several years ago, and was not included in any U. S. Government survey, and therefore was not claimed by the government, or by any county or state. The only title that could be acquired to the land on the island was such as that claimed by Mr. Campbell, to wit, the title of occupancy.

The evidence shows that the respondent had cleared and put in cultivation about 75 or 80 acres of said land, and had built two houses and a barn thereon; that he had raised three crops on the land, and had fenced off pasture for his stock which he had on the island. The evidence further shows that he was in possession of this part of the island at the time the sand in question was taken by appellants from the island, and that he protested against the sand being removed until he was paid...