Deland v. Vanstone

• Decision Date: 17 May 1887
• Parties: O. A. DELAND, Respondent, v. C. H. VANSTONE ET AL., Appellants.
• Court: Missouri Court of Appeals

26 Mo.App. 297

O. A. DELAND, Respondent, v. C. H. VANSTONE ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the Howell County Circuit Court, J. R. WOODSIDE, Judge.

Reversed and dismissed.

L. B WOODSIDE, with MONKS & GREEN, for the appellants: The necessary allegation that the plaintiff was in possession of the premises was not made. Garner v. McCullough, 48 Mo. 318. It is necessary to show that the plaintiff was in possession of the premises at the time of the alleged trespass, and he having failed to prove that he was in possession, he could not recover in the action. Cochran v. Whitesides, 34 Mo. 417; Roussin v. Benton, 6 Mo. 592; Pope v. Corden, 47 Mo. 251; Davis v Wood, 7 Mo. 162; More v. Perry, 61 Mo. 174; Rannels v. Rannels, 52 Mo. 108; Armory v Delamire, 1 Smith's Lead. Cas. 604. Trespass for cutting and carrying away timber will not lie against a defendant actually in possession of land, either by himself, or his tenant. In such case ejectment is the proper remedy, and therein the plaintiff may have his damages for waste or injury. More v. Perry, 61 Mo. 174; Hawkins v. Roby, 77 Mo. 140; Brown v. Carter, 52 Mo. 46; McMenamy v. Cohick, 1 Mo.App. 529.

OLDEN, LIVINGSTON & PITTS, for the respondent: The judgment was not excessive, and the measure of damages was not the value of the pine timber before cut. The defendant took the timber wrongfully, and in total disregard of the plaintiff's rights, and with notice of such rights. The true measure of damages, then, would have been the value of the timber after having been sawed into lumber, and by its appreciation in price. Buckman v. Nosh, 12 Me. [3 Fairf.] 474; Wallace v. Goodall, 18 N.H. 439; Walther v. Witmore, 1 E. D. Smith [N. Y.] 7, 28; Wooden Ware Company v. United States, 106 U.S. 230; S. C., 16 Otto 432, 437.

B. F. OLDEN, O. H. LIVINGSTON, and CHARLES CLAFLIN ALLEN, for the respondent on motion for a re-hearing: The decision rendered is in conflict with an express statute and with controlling decisions to which the attention of the court has not been directed, to-wit: Rev. Stat., sects. 3921, 3924; Massey v. Snelson, 3 Mo. 393; Turley v. Tucker, 6 Mo. 583; Pearson v. Inland, 20 Mo. 322; Renshaw v. Lloyd, 50 Mo. 368; Railroad v. Freeman, 61 Mo. 80.

OPINION

ROMBAUER J.

This is an action of trespass de bonis asportatis, if anything. The plaintiff's petition is as follows:

" The plaintiff states that, on or about the thirtieth day of January, 1883, at the county of Howell, and state of Missouri, the defendants, without leave, and wrongfully, entered on the southwest quarter of northeast quarter, southeast quarter of northwest quarter, and northwest quarter of southeast quarter of section 27, township 27, range 10, west, of which the plaintiff was the owner of the timber standing and growing on said land above described, and there cut timber of the value of ten thousand dollars, and carried it away, by which acts and doings of the defendants the plaintiff was damaged in the sum of ten thousand dollars, for which he asks judgment."

The answer is a general denial

Upon the trial the defendants objected to the introduction of any evidence, on the ground that the petition failed to state a cause of action, and at the close of the plaintiff's case, they demurred to all the evidence, on the ground that neither the petition nor the evidence showed any right of recovery in the plaintiff. Both these objections were overruled and the trial resulted in a judgment for the plaintiff. The defendants, among other things, assign for error the action of the trial court in overruling these objections.

These complaints of the defendants are just. The petition fails to state that the plaintiff ever was in possession of either the land or the timber. Possession is essential to maintain such an action. Garner v. McCullough, 48 Mo. 318; Cochran v. Whitesides, 34 Mo. 417, 419; More v. Perry, 61 Mo. 174. It is immaterial in that regard whether the action is trespass or trover, as the only distinction between the two, if any, seems to be that the one is founded on mere possession, and the other on right, as constituted or evidenced by possession, actual or constructive.

The averment of possession being essential, its omission was a fatal defect, which could not be cured by verdict. Frazer v. Roberts, 32 Mo. 457; Jones v. Tuller, 38 Mo. 363; Clinton v. Williams, 53 Mo. 141.

But even could it have been thus cured, there was no evidence to cure it. The evidence of the plaintiff tends to show that, in the year 1882, he bought of Pruitt, one of the defendants, the right to have the pine timber, standing on the land mentioned in the petition, cut and removed within a limited time, the contract giving him a license to enter for that purpose. He never entered. Pruitt was in possession of the land when the contract was signed and so remained until January, 1883, when, assuming, rightfully or otherwise, that the plaintiff had failed to comply with his part of the contract, he sold the timber to the defendant, Vanstone. Vanstone thereupon entered upon the land, and cut and removed the timber against the plaintiff's objection.

The evidence fails to show that the plaintiff ever was either in the actual or constructive possession of the land, by himself or agents. His interest was a mere executive interest until entry. Austin v. Coal & Mining Co., 72 Mo. 535, 542. The defendant, Vanstone, from the date of his entry, was in the actual adverse possession of the land, and the right of the plaintiff to the timber cut from it, or any other of its products after severance, could not be determined in an action of trover or replevin. Powell v. Smith, 2 Watts 126; Lehman v. Kellermann, 65 Pa.St. 491. The only remedy, if any the plaintiff has, is against Pruitt for a wrongful violation of his contract.

We have not been able to find any case where timber standing upon land has been treated or considered as personal property. There are cases where the owner of the land, or even the mortgagee not in actual possession, was held entitled to maintain an action of trover for the conversion of property which, prior to its severance, had formed part of the realty, but all these cases, upon examination, will be found to rest on the constructive possession of the owner or mortgagee, as holders of the unquestioned legal title, the possession of the party committing the trespass not being adverse. To hold that the action will lie without actual or constructive possession, and is supportable on the right of property, coupled with the right of possession alone, would be, in effect, holding that any ...