Dyer v. Reitz
| Decision Date | 15 May 1884 |
| Parties | THOMAS W. DYER ET AL., Appellants, v. A. REITZ ET AL., Respondents. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, HORNER, J.
Affirmed.
T. A. RUSSELL and E. P. JOHNSON, for the appellants.
FRANK K. RYAN, for the respondents.
This is an action of forcible entry and detainer. At the close of the testimony, upon the giving and refusing of instructions by the court, sitting as a jury, the plaintiffs took a non-suit, which the court afterwards refused to set aside.
The whole controversy turns upon the question whether the plaintiffs were in peaceable possession of the premises, at the time of the alleged forcible entry by the defendants. The testimony tended generally to show that, until on or about October 13, 1881, when one or more of the defendants began to use the lots as a stoneyard, they had lain vacant, and had never been occupied for any useful purpose. The plaintiffs' testimony tended to prove that in April or May, 1878, they enclosed the lots with a board fence, which remained standing until August of the same year; and that, on the morning of October 13, 1881, they closed the lots in with posts about twelve feet apart, connected by barbed wire in three strands. These posts and wires were removed by other persons, possibly the defendants. Within forty-eight hours the defendants erected a more substantial fence, and continued to occupy the premises until the institution of this proceeding, on November, 8, 1881. One of the plaintiffs, who acted for all in causing the fences to be built, as stated, testified that the special object of that work in each instance was to aid in a contemplated litigation about the title. Several witnesses for the defendants testified that they had lived near the lots and seen them daily for many years, beginning long before 1878, but they had never seen any enclosure around the lots prior to that built by defendants.
Every legal procedure is intended for the redress or prevention of some wrong or grievance; or, in another form of expression, for the enforcement of some right. Procedures are divided into classes, each being adapted to a particular method of protecting a specific class of rights. Thus, ejectment is designed to protect and enforce the right of possession derived from ownership or title; while the action of forcible entry and detainer sustains only the right to remain in a possession peaceably acquired and held, until this shall be determined by due course of law. Possession, in either case, means a real dominion, capable of devoting the property to some beneficial use, however small, by him who enjoys it. Procedure must be invoked in behalf of such dominion, as a substantial right, whose enjoyment is invaded, or withheld; and not for the mere purpose of securing a vantage ground for other litigation. The suitor who employs it for the latter purpose, attempts a fraud upon the law. He would have the courts employed, not in administering justice between litigants, but in rewarding only the most skillful strategist. Such a case is exactly presented by the party who relies on what has been aptly called a “scrambling possession.” It is a possession without anys avor of the legitimate enjoyment of...
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Underwood v. City of Caruthersville
...leaving nothing to definitely determine the boundary line. Any physical possession arising by virtue of it was abandoned. [Dyer v. Reitz, 14 Mo.App. 45.] And there is no that at the time of defendant's alleged entry there was any coal on that part of the strip. There were, as said, a few to......
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Buck v. Endicott
...the land to some beneficial use and not merely to gain advantage in some contemplated litigation. Kincaid v. Logue, 7 Mo. 167; Dyer v. Reitz, 14 Mo.App. 45; DeGraw Prior, 60 Mo. 56; Bradley v. West, 60 Mo. 59. Paying taxes is an act of ownership and not an act of possession and avails nothi......
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National Garment Co. v. City of Paris, Mo.
...the character of the land, and the purpose to which it is adapted. 36A C.J.S. Forcible Entry and Detainer § 11b (1961). In Dyer v. Reitz, 14 Mo.App. 45 (1884), possession was defined as "a real dominion, capable of devoting the property to some beneficial use, however small, by him who enjo......
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Brown v. McCormick
...v. Cardwell, 29 Mo. 72. Possession merely to gain some advantage at law is not bona fide. Keene v. Schnedler, 9 Mo. App. 597; Dyer v. Reitz, 14 Mo. App. 45. A party who asks an instruction on the whole case must so frame it as not to exclude from the jury the points raised by the evidence o......