Campbell v. Brown

• Decision Date: 07 November 1911
• Citation: 140 S.W. 931,160 Mo. App. 532
• Parties: CAMPBELL v. BROWN et al.
• Court: Missouri Court of Appeals

140 S.W. 931

160 Mo. A. 532

CAMPBELL v. BROWN et al.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

REPLEVIN (§ 8) — POSSESSION OF PLAINTIFF.

That plaintiff cultivated an island now constituting a sand bar, and that defendants promised to pay him for sand taken therefrom, shows such actual possession by plaintiff as to entitle him to claim the sand as against defendants, mere trespassers.

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

Action by Arch Campbell against Charles Brown and others. Judgment for plaintiff, and defendants appeal. Reversed by the Springfield Court of Appeals (146 Mo. App. 319, 130 S. W. 50) and transferred to the St. Louis Court of Appeals. Affirmed.

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

REYNOLDS, P. J.

This is an action commenced before a justice of the peace, under the statute relating to claim and delivery of personal property, to-wit, a barge load of sand. From a judgment in favor of plaintiff, defendants appealed to the circuit court, where on a trial anew before the court, a jury being waived, plaintiff again recovered and defendants appealed to this court. The cause was transferred by us to the Springfield Court of Appeals, under the provisions of section 3939, R. S. 1909, and the judgment of the circuit court reversed. The cause was transferred back to us in consequence of the holding of the Supreme Court, that the Act of the General Assembly (Acts 1909, p. 396 [section 3939, supra]) was unconstitutional and that all judgments rendered by the Springfield Court of Appeals in causes so transferred were void.

The statement of facts and opinion of the Springfield Court in the case, are reported under this same title in 146 Mo. App. 319, 130 S. W. 50. We add to the statement of facts as there made these: There was evidence tending to show that plaintiff had cultivated the part of the island now occupied by the sand bar or flat, from which the sand was taken by defendants, for about three years; that a year before the sand was taken, the upper layer or field, then under cultivation by plaintiff was washed away and the sand left or deposited where the cultivated land had been; that he had sold sand off of this island before this taking, selling a load to these defendants, and which there was evidence tending to prove defendants had at the time promised to pay him for but had afterwards refused; that when the load of sand in controversy was...