Campbell v. Brown
| Decision Date | 07 July 1910 |
| Parties | ARCH CAMPBELL, Respondent, v. CHARLES BROWN et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed.
Ward & Collins for appellants.
(1) Whenever a part of the realty is severed by a trespasser, it becomes personal property and belongs to the owner of the land on which it stood; but to maintain an action of replevin therefor, the plaintiff must have in himself the right of property, general or special, coupled with the right of immediate possession, and if his title is denied the onus is upon him to prove it. Baker v. Campbell, 32 Mo.App 529; Andrews v. Costican, 30 Mo.App. 33; Westbay v. Milligan, 89 Mo.App. 294; Gray v. Parker, 38 Mo. 160; Scott v. Riley, 49 Mo.App. 253; Morgan v. Viggs, 46 Mo. 65. (2) Where plaintiff's title is denied mere naked possession will not support an action of replevin without general or special property in the plaintiff. Garstside v. Nixon, 43 Mo. 139; McMahill v. Walker, 22 Mo.App. 170; Benedict Mfg. Co. v. Jones, 60 Mo.App. 221; Broadwater v Darne, 10 Mo. 177; Wright v. Richmond, 21 Mo.App. 78. (3) The above rule however is deflected by the following rule: "In the absence of all evidence as to title in either party, possession of the property by one of them affords a prima-facie presumption of title in him, which may be overcome and disappears when evidence on that issue supervenes." Simmons v. Beaubine, 38 Mo. 307. (4) In an action of replevin, the plaintiff must recover upon the strength of his own title and not upon the weakness of the defendants. Kennedy v. Dodson, 44 Mo.App. 553; Moore v. Car, 65 Mo.App. 69; Maryville Bank v Snyder, 85 Mo.App. 82. (5) A case wherein the property replevied is a part of severed realty title to the real estate must be inquired into. Kelley v. Vandiver, 75 Mo. 435. (6) And plaintiff's suit may be defeated by showing the title to the property to be in a third party and not in plaintiff. Young v. Glascock, 79 Mo. 574; Gottschalk v. Klinger, 32 Mo.App. 415. (7) Possession without color of title, although adverse, does not extend the holding beyond the limits of the land actually in possession. Pharis v. Jones, 122 Mo. 125; Wilson v. Purl, 148 Mo. 449; City v. Garmon, 27 Mo. 593.
Jere S. Gossom and Rice A. Pierce for respondent.
(1) The law is elementary that "actual possession is a good title against any one who does not show a better title." Weeks v. Etter, 81 Mo. 375; Springfield Grocer Co. v. Shackelford, 56 Mo.App. 642; Pallen v. Bogy, 78 Mo.App. 87; Frear v. Maguire, 70 Mo.App. 588; Hickey v. Hazard, 3 Mo.App. 486.
--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 defendants 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 defendants have 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 seventy-five or eighty 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 the appellants from the island, and that he protested against the sand being removed until he was paid for the same. The evidence further showed that the sand was taken from a sand bar along the bank of the island some thirty feet from the top of the bank and about two or three hundred yards from that part of the island cultivated by respondent, there being a growth of willows and cottonwood between the cultivated land and the sand bank. The evidence further showed that plaintiff had cultivated land immediately over the place from which this sand was taken in the year 1906, but that this land had caved in and washed away, and the sand bank from which this sand was taken formed since.
Will these facts support the judgment? It is apparent that plaintiff has no title to any part of the island, but his entire right rests upon possession alone. Plaintiff contends that the sand taken by defendants was, at the time, in his possession and that the act of defendants in taking it was tortious, and that, therefore, his prior possession will support this action.
There is some apparent conflict in the early decisions in this State upon the question of when naked possession will support an action of replevin. It has been held that the proof of prior possession alone is not sufficient to support the action in a case in which plaintiff's title is denied, and in that state of the issues plaintiff must prove a general or special interest in the property and the right of immediate possession. [Bayless v. La Faivre, 37 Mo. 119; Gray v. Baker, 38 Mo. 160; Gartside v. Nixon, 43 Mo. 138; Wright v. Richmond, 21 Mo.App. 76.]
And further that in actions begun before a justice of the peace where no formal pleadings are required, the appearance of defendants and their resistance to the right of plaintiff to recover puts in issue the plaintiff's title and places upon him the burden of showing more than a mere antecedent, naked possession. [Scott v. Riley, 49 Mo.App. 251; Stone v. McNeely, 59 Mo.App. 396.]
While in another line of cases the position is taken that prior possession is sufficient to support an action in replevin against any one who cannot show a better title. [Summers v. Anderson, 36 Mo. 307; Smith v. Lydick, 42 Mo. 209; Weeks v. Etter, 81 Mo. 375.]
A close examination of these cases, however, will disclose that there is no real conflict, but that what was said in each case was correct as applied to the facts of that particular case. The correct rule to be deduced from all the cases is that prior possession is sufficient proof of title upon which to maintain the action of replevin against a wrongdoer. That is against one who may have dispossessed him or who may have tortiously interfered with his possessory right; but if the defendant has come into possession of the property without having in any way, trespassed upon plaintiff's right...
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