Cooper v. Maupin

• Decision Date: 30 September 1840
• Citation: 6 Mo. 624
• Parties: COOPER v. MAUPIN.
• Court: Missouri Supreme Court

6 Mo. 624

COOPER

v.MAUPIN.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY.

FRISSELL, for Appellant. 1st. That the court erred in permitting testimouy to go to the jury respecting the number of times the fence had been thrown down, that not being a matter in issue. 2nd. That the court erred in permitting a witness to express his opinion on the comparative practicability of making a road down two different bluffs, the said witness not being an engineer. 3rd. That the court erred in refusing the 4th instruction prayed for by the appellant. 3 Kent Com. 419, 424; Howton v. Treason, 8 T. R. 50. 4th. That the court erred in refusing the 7th instruction prayed for by the appellant. 5th. That the court erred in giving the third instruction prayed for by the appellee. 3 Kent, 422; O'Fallon v. Dagget and Price 4 Mo. R. 346, as to the last reservation. 6th. That the court erred in rendering judgment upon the verdict of the jury in this case, the damages being entire, and the finding being upon counts on which both single and double damages must be assessed. Withington v. Young, 4 Mo. R. 564; Lowell v. Lewis, 1 Mason, Cox's Dig. 232. 7th. That the jury should have found the issues joined upon the special pleas, and in case of finding for the plaintiff, the damages should have been subsequently assessed by another.

POLK, for Appellee. 1st. The court ruled rightly in allowing proof to go to the jury of the number of times defendant threw down plaintiff's fence. 2nd. That the court committed no error in permitting plaintiff to prove that defendant had said, a road could be made down the bluff at his mill by a couple of hands in two or three months, and that the bluff at the mill was not higher or more difficult than that along defendant's land, round which the way of necessity is claimed. 3rd. That the court did right in refusing to give the fourth and seventh instructions asked by defendant. 4th. That the court did right in giving the instructions prayed for by the plaintiff's counsel. 5th. That the second motion for a new trial was properly overruled by the court. 6th. That the motion in arrest of judgment was properly overruled by the court.

NAPTON, J.

Maupin, the appellee sued Cooper in the Franklin Circuit Court in an action of trespass quare clausum fregit. The declaration contains three counts. The first count charged, that defendant on a day specified, and on divers other days from that day until the commencement of this suit, broke and entered into a certain close of plaintiff (describing it) and then and there prostrated the fence of plaintiff, of great value, to-wit: fifty dollars, and trampled down corn, wheat, oats and grass to the value of ten dollars, and with his cattle depastured and eat up the corn, oats, &c., of said plaintiff to the value of ten dollars; and then and there prostrated and cut down the trees of plaintiff, and then and there dug up the soil, and also took and converted to his own use the fence, rails and timber, and wood, of the value of ten dollars, and other wrongs did by means whereof, &c.

The second count is founded on the 2nd section of the act entitled an act to prevent certain trespasses, approved February 25, 1835, Rev. Code of 1835, p. 612, and the third count is framed upon the same section.

To this declaration defendant pleaded: 1, general issue; 2, leave and license; 3, a right of way by necessity, and that the acts complained of were only such as were necessary to a proper enjoyment of such right of way; 4, agreement by plaintiff with defendant in consideration of certain work, labor and materials, furnished by latter to the former, by which the former granted to the latter, his heirs and assigns, a right of way over plaintiff's close, from a certain highway in Franklin county to the close of defendant, and that the acts complained of were done in the proper use of said way.

Issues were taken on these pleas, the parties went to trial, and a verdict was given to Maupin for $175 00, which on motion was set aside and a new trial granted. At the June term, 1839, defendant withdrew his plea of the general issue, and a trial was had on the remaining issues. The jury found each of the issues for the plaintiff, and assessed his damages to one hundred and fifty dollars; judgment was given for the damages aforesaid and costs. The defendant, moved for a new trial; because the verdict was against law and evidence; because the court misinstructed the jury; because the court refused proper testimony and admitted improper testimony, and the damages were excessive. A motion was also made in arrest of judgment, because general damages had been assessed by the jury upon a general finding, and under the common law count the damages were single, and under the statutory count treble damages were recoverable. Both these motions were overruled.

From the bill of exceptions the following facts may be considered beyond dispute. Leah Maupin in 1825 conveyed by deed to Cooper the land on which he resided at the institution of this suit, being a part of her entire tract. In 1830, she conveyed the remainder to Maupin. From the plat of the land exhibited on the record, it seems that the bluff of the Missouri river separated that part of Cooper's land on which his house was located from a field which he cultivated in the bottom, and this bluff, which was steep, extended through his entire tract; both Cooper and Maupin lived on the bluff, and had fields in the bottom; near the dividing line between Cooper and Maupin was a ravine, along which Cooper and Maupin had by their joint labor constructed a road to their fields in the bottom. This road was on Maupin's land. Cooper could get to his bottom field by another road leading through the land of Mr. Williams, which was somewhat further than the road through Maupin's land. About the last of March, 1838, Maupin fenced up the road with a good fence, staked and ridered, which Cooper threw down whenever he had occasion to pass the road. One witness testified that the fence was thrown down by Cooper thirty-three times, and other witnesses testified to sixteen times, other than those spoken of by the first witness. This testimony in relation to the number of trespasses, was objected to by defendant, but admitted by the court. A witness also testified, that at the foot of another bluff, where Cooper had another piece of land, Cooper had been building a mill, and he (witness) had heard Cooper say, that he could make a road to the top of the bluff, where his mill was, at the expense of two or three months work, with a couple of hands, and witness thought that the bluff at the mill was as bad as the bluff at Cooper's field. This testimony was also objected to by the defendant, but was allowed to go to the jury.

The defendant moved for the following instructions: 1. That Leah Maupin in conveying to Cooper the land specified in the deed bearing date November 24, 1825, conveyed to him all privileges she there possessed in other adjoining lands necessary for Cooper's complete enjoyment of the land by said deed. 2. That the conveyance of the land, adjoining that already conveyed to Cooper, to the plaintiff Maupin, vested in Maupin the said land, subject to the rights and easements of Cooper in that land. 3. That if the jury believe from the evidence that both Maupin and Cooper claimed under Leah Maupin, and that the conveyance to Cooper was prior to the conveyance to Maupin, and that the way in question over a part of the land of Maupin was necessary to Cooper for the enjoyment of the land conveyed to him by Leah Maupin, they must find for the defendant. 4. That if the jury believe from the evidence that the way in question is a way of necessity for Cooper to enjoy his own land, they must find for the defendant. 5. That if the jury believe from the evidence that the laying down the fences, and other acts complained of in the second and third counts, were necessary for Cooper to do, in order to go to his own close, they must find for the defendant on the said two counts. 6. That if the jury believe that the way, out of which the fences were thrown, was made by Maupin and Cooper in partnership, and for their joint use, and that Cooper was in possession of said way, as far as such property is susceptible of possession, with the consent of the plaintiff, the action of trespass does not lie. 7. That if the jury believe from the evidence that Maupin offered to pay Cooper for the way, it was an acknowledgment of Cooper's right to use the way, and the action of trespass does not lie.

All of which instructions except the fourth and seventh the court gave. At the instance of the plaintiff the court also gave the following instructions: 1. On the issue made upon the second plea the jury must find for the plaintiff, unless they believe from the evidence that the acts alleged in the declaration as trespasses were committed by defendant on a way leading from a certain public highway in Franklin county to the close of defendant, and that the defendant had no other way from said highway to said defendant's close mentioned, then that on which said acts were committed, and that said acts were only such as were necessary to be done in passing said way. 2. On the issue made upon the third plea, the jury must find for the plaintiff, unless they believe from the evidence that before committing the acts attempted to be justified in said plea, there was an agreement made beween owner of close of plaintiff and owner of close of defendant, in consideration of certain work and labor, &c., as alleged in said plea by which the former granted to the latter and his assigns, a certain way from the public highway to the defendant's close, over plain...