Cochran v. Whitesides

• Decision Date: 31 March 1864
• Citation: 34 Mo. 417
• Parties: MARY COCHRAN, Appellant, v. JACOB WHITESIDES, Respondent.
• Court: Missouri Supreme Court

34 Mo. 417

MARY COCHRAN, Appellant,

v.JACOB WHITESIDES, Respondent.

Supreme Court of Missouri.

March Term, 1864.

Appeal from Lincoln Circuit Court.

J. B. Henderson, for appellant.

The distinction between the different actions at law, and actions at law and suits in equity, and the forms of all such actions and suits, had been abolished by the practice act of 1849, under which this suit was brought; and although at common law the action would have been trespass, and subject to all the rules applicable to that form of action, yet under the statute the only inquiry to be made is, whether the plaintiff under the pleadings and evidence is entitled to a remedy; in other words, whether she could recover under her title to the land in dispute, for waste and damages committed by defendant in the cutting of timber, after plaintiff's title had accrued, but also after defendant had enclosed the land with fence, under claim of title. It is insisted that the plaintiff is entitled to compensation for such waste and damages notwithstanding the actual possession of defendant.

J. O. Broadhead and D. C. Woods, for respondent.

The record shows that there is really but one point involved in this case; can a person maintain an action for trespass upon land without being in possession? This court has decided that they cannot. A lessor cannot maintain trespass, quare clausum fregit, while there is a tenant in possession. (Roussin v. Benton, 6 Mo. 592; Davis v. Wood, 7 Mo. 162; Boston v. Neat, 12 Mo. 125; Sigerson v. Hornsby, 12 Mo. 71.)

In trespass quare clausum fregit, it is unnecessary for the plaintiff, in order to recover, to prove himself in possession of the premises. (1 Chit. Pl. 201, 202; 2 Stark. Ev. 303; 1 East. 244; 4 Taunt. 547; 2 Stark's Ev. 303.)

The actual possession of a part of a tract of land under a claim of title to the whole, is possession of the whole tract. (7 Mo. 166; Ellicot v. Pearl, 10 Pet. 442, and authorities there cited; Adams on Eject. 54-5, n. 2, and authorities there cited; Acts 1847, p. 95, § 5.)

DRYDEN, Judge, delivered the opinion of the court.

This was an action commenced under the practice act of 1849, to recover damages for wrongfully entering and cutting timber on the land of the plaintiff. The evidence on the trial tended to show that at the time of the commission of the trespasses complained of, and for several years prior thereto, the defendant was in the actual possession of the land trespassed upon, claiming and holding the same adversely to the plaintiff. The court ins ucted as follows: “If the jury find that at the time of the commission of the alleged trespasses the plaintiff was not in the actual possession of the premises on which the trespasses were committed, and that the defendant was in the actual occupancy thereof, claiming the land adversely to the plaintiff, the plaintiff cannot recover in this action.” The plaintiff then suffered a non-suit, and, after an ineffectual motion to set it aside, appealed to this court.

The action of trespass quare clausum fregit could be maintained at common law only where the plaintiff was in the possession of the close at the time of the commission of the trespass. It was an action for injury...