Emerson v. Sturgeon

• Decision Date: 31 March 1853
• Citation: 18 Mo. 170
• Parties: EMERSON & CHILDS, Appellants, v. STURGEON et al., Respondents.
• Court: Missouri Supreme Court

18 Mo. 170

EMERSON & CHILDS, Appellants,

v.STURGEON et al., Respondents.

Supreme Court of Missouri.

March Term, 1853.

1. It is error to instruct that a plaintiff cannot recover, if there is any evidence whatever, either direct or inferential, upon which the jury could find a verdict.

2. Under a system of practice which permitted the defense of liberum tenementum to be made to an action of trespass quare clausum fregit, by evidence under a general plea without being specially pleaded, it was held, that the plaintiff might newly assign the abuttals of his close by evidence.

Appeal from St. Louis Court of Common Pleas.

Todd & Krum, for appellants.

R. M. Field, for respondents.

SCOTT, Judge, delivered the opinion of the court.

This was an action of trespass quare clausum fregit begun in the year 1848, by the appellants against the respondents, for entering certain premises situate in what is called “North St. Louis,” a portion of the city of St. Louis, and upon which the appellants had their saw-mill and boat yard, and carried on the business of the same thereon. The plea to the action was such as was then required by the statute, viz: “And the said defendant comes and defends the demand of the plaintiffs.” A witness testified that the premises and boat yard had a fixed boundary. The boundary extended from a certain large gully on the north side of it, and south to Childs' log yard, and from Second street east to the Mississippi, making in all four acres or near it. The witness deposed to a trespass committed on these premises thus described. The appellants, prior to this trespass, had been in peaceable possession of the premises. Isaac H. Sturgeon, the agent of Chambers, under whose authority the respondents acted, endeavored to make an arrangement with Emerson, one of the appellants, so that he might have leave to make a fence on the disputed ground, but without effect. Sturgeon wanted Emerson to take a lease from him. A witness for the plaintiffs stated, on cross-examination, that he paid for the plaintiffs the rent for the mill site to Isaac H. Sturgeon, agent for Wm. Chambers. Evidence was offered, brought out on cross-examination tending to show that Chambers owned a portion of the land on which the trespass is alleged to have been committed. On the close of the appellant's evidence, the court instructed the jury that the plaintiffs, from the evidence, were not entitled to recover, and thereupon a non-suit was taken.

1. We cannot see why this instruction should have been given. Surely the term ““demurrer to evidence,” will not be applied to a case like the present. The defendants, it is true, produced no witness, but endeavored to make a defense by a cross-examination of those who were examined by the plaintiffs. So facts for both sides were before the jury; why not, then, let the jury determine the case under instructions from the court? This mode of practice cannot succeed. What question of law was decided below? To what points did the court direct its attention? Are we informed by this record? Must we grope in the dark to find out what was...