Grobe v. Energy Coal & Supply Co.

• Decision Date: 13 August 1925
• Citation: 275 S.W. 67,217 Mo.App. 342
• Parties: CARL E. GROBE, Respondent, v. ENERGY COAL AND SUPPLY COMPANY, Appellant. *
• Court: Missouri Court of Appeals

275 S.W. 67

217 Mo.App. 342

CARL E. GROBE, Respondent, v. ENERGY COAL AND SUPPLY COMPANY, Appellant. *

Court of Appeals of Missouri, Springfield

August 13, 1925

Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.

AFFIRMED.

Judgment affirmed.

Sam M Phillips of Poplar Bluff, for appellant.

(1) Navigable waters are waters capable of being navigated, that is navigable in fact, the test being whether or not they are navigable in their ordinary condition as highways for commerce over which trade and travel may be conducted in the customary mode of trade or travel on water. Slovensky v O'Reilly, 233 S.W. 478; McKinney v. Northcutt, 114 Mo.App. 146; Hickey v. Hazard, 3 Mo.App. 480; O'Fallon v. Daggett, 4 Mo. 343; State v. Taylor, 123 S.W. 919. (2) The fact that there is no tide in Black river does not prevent it from being a navigable stream. Water is navigable in law, although not tidal, and is navigable in fact where it is of sufficient capacity to be capable of being used for useful purposes of navigation, that is, for trade and travel in the usual and ordinary modes. Benson v. Morrow, 61 Mo. 345; Weller v. Mo. Lumber & Mining Co., 151 S.W. 853, 176 Mo.App. 243; Schulte v. Warren, 218 Ill. 108, 75 N.E. 783; Hempstead v. New York, 52 A.D. 182, 65 N.Y.S. 14; Alston v. Limeshouse, 60 S.C. 559, 39 S.E. 188; St. Anthony Falls Water Power Co. v. St. Paul Water Com., 168 U.S. 349, 18 S.Ct. 157, 42 Law Ed. 497; Egan v. Hart, 165 U.S. 188, 17 S.Ct. 300, 41 Law, Ed. 680; Light, etc., Co. v. State, 191 N.Y.S. 657; Mfg. Co. v. State, 194 N.Y.S. 155. (3) Navigable character of stream is not affected by the fact that there are stretches where navigation is difficult or impossible. Light, etc., Co. v. State, 191 N.Y.S. 657. (4) Nor does presence of reefs, rapids and shallow water change its character. Light, etc., Co. v. State, 191 N.Y.S. 657; Danes v. State, 219 N.Y. 67, 113 N.E. 786; State v. Land Co., 127 Tenn. 575, 158 S.W. 746, Ann. Cases 1914-B, 1043; Leamy v. Rex, 54 Canada S.Ct. 143, 15 Canada Exchange 189; Hubbard v. Fort, 188 F. 987; Power Co. v. Rex, 43 Canada S.Ct. 27; People v. Page, 39 A.D. 110, 6 N.Y.S. 834, 56 N.Y.S. 239; Guilliams v. Club, 175 P. 437; Pulp, etc., Co. v. Peck, 104 Misc. 172, 171 N.Y.S. 1065; Light etc. Co. v. United States, 256 F. 792; Pulp, etc., Co. v. Peck, 178 N.Y.S. 663. (5) The fact that large steam boats could not pass up and down Black river at the point where the gravel in question was taken from the bottom of the river, would not destroy the navigability of the stream when it was shown that the stream was navigable from the Black river bridge at Poplar Bluff south to its mouth. When Black river was shown to be navigable in part, this made of it a navigable stream for its whole length, and it being a navigable stream the plaintiff could have only owned property, if he owned it at all (which his own evidence showed that he did not) to the low water mark on his side of the river. 9 Corpus Juris, 187; Frank v. Goddin, 103 Mo. 390; State v. Longfellow, 169 Mo. 109; Perkins v. Adams, 132 Mo. 131; Hobart-Lee Tie Co. v. Stone, 117 S.W. 604, 135 Mo.App. 438. (6) Instruction number one submits wrong measure of damages. The plaintiff's instruction No. 1 was erroneous in submitting to the jury the wrong measure of damages in this case. The instruction told the jury that if they found certain facts "your verdict must be for the plaintiff for the reasonable market value of such gravel, if any, at the time and place taken and carried away, etc." From the reasonable market value of the gravel at the place it was taken and carried away should be deducted the cost of pumping the gravel. (7) Petition does not state cause of action. Plaintiff's petition in this case did not state facts sufficient to constitute a cause of action in that it failed to state that Black river was a non-navigable stream. If Black river was a navigable stream, then even though plaintiff's land bordered on said stream, still he would not own to the thread of the stream. Frank v. Goddin, 193 Mo. 390; State v. Longfellow, 169 Mo. 109; Perkins v. Adams, 132 Mo. 131. (8) Now in order for the plaintiff to recover in this lawsuit the burden of proof was upon him to establish by a preponderance of the testimony that Black river was a non-navigable stream. This was a fact absolutely essential for him to prove in order to recover. What is necessary to be proved is necessary to be alleged, and plaintiff's failure to incorporate in his petition the allegations of this necessary fact to entitle him to recover, made the petition defective in that it did not state facts sufficient to constitute a cause of action. The defendant made this objection to the petition. (9) In a petition if a material fact is not alleged, it is presumed not to exist. Frantz v. Patterson, 123 Ill.App. 13; Cannon v. Castleman, 162 Ind. 6, 69 N.E. 455; Hughes v. Murdock, 45 La. Annual, 935, 13 So. 182; Chicago, etc., Ry. Co. v. Sheppard, 39 Neb. 523, 58 N.W. 189; Stillings v. Van Alstine, 2 Neb. (Unoff), 684, 89 N.W. 756; Marsh v. Marshall, 53 Pa. St. 396; Mills v. Swearingen, 67 Tex. 269, 3 S.W. 268. (10) It has always been the law in this State that it is erroneous to submit to the jury an issue of fact concerning which no allegation is made in the pleadings. The trial issues must in all cases be within the paper issues. State ex rel. v. Ellison, 195 S.W. 724, 270 Mo. 645; Fulkerson v. Thornton, 68 Mo. 468; Kenney v. Railroad Co., 70 Mo. 252; Melvin v. Railroad, 89 Mo. 106; Rothschild v. Frensdorf, 21 Mo.App. 318; Whitlock v. Appleby, 49 Mo.App. 295. (11) The plaintiff must state the facts upon which he bases his cause of action as they exist; he cannot set up one state of facts, and recover upon another. If he fails to state facts sufficient to constitute a cause of action, he cannot supply the defect by evidence at the trial. Fields v. Chicago, Rock Island, etc., Ry., 76 Mo. 614. (12) He cannot prove facts not pleaded, and he is not entitled to an instruction based upon facts not pleaded. Halpin Mfg. Co. v. School Dist., 54 Mo.App. 371; Chitty v. St. Louis, Iron Mountain, etc., Ry. Co., 148 Mo. 64.

Jerry Mulloy, of Poplar Bluff, for respondent.

(1) (a) The court will take judicial notice that Black river is not a navigable stream in the broad sense where title to the bed is retained in the public and not vested in adjoining landowners. State ex rel. Taylor, 224 Mo. 393, 123 S.W. 893; Weller v. Lumber Co., 176 Mo.App. 243, 161 S.W. 853; Northcutt v. Lumber Co., 187 Mo.App. 386, 173 S.W 15; Wright Lumber Co. v. Ripley County, 270 Mo. 121, 192 S.W. 996; State v. Wright, 201 Mo.App. 92, 208 S.W. 149; Hobart Lee Tie Co. v. Grabner, 219 S.W. 975; Slovensky et al. v. O'Reilly et al., 233 S.W. 481. (b) This judicial notice will prevail despite admissions of the parties and Acts of the Legislature to the contrary. Wright Lumber Co. v. Ripley County, 270 Mo. 121, 192 S.W. 996; Hobart Lee Tie Co. v. Grabner, 219 S.W. 975; Slovensky et al. v. O' Reilly, 233 S.W. 482. (c) The petition, by alleging that the lands of plaintiff "formed a part of the bed and banks of Black river; and that the defendant took and carried away two thousand yards of gravel 'theretofore lying and being on and comprising a part of said described lands,'" contains averment which brings the case within the scope of judicial knowledge. Facts of which the court will take judicial notice need not be alleged. 31 Cyc. 47; Bart v. Kansas City El. R. Co., 142 Mo. 535, 44 S.W. 778; South Missouri Lumber Co. v. Wright, 114 Mo. 326, 21 S.W. 811; Shackleford v. City of Jefferson, 167 Mo.App. 59, 150 S.W. 1123; Bliss on Code Pleading (2 Ed.), p. 285; McQuillin's Pleading and Practice (1892), p. 270; Baylies' Code Pleading & Forms, p. 31; Sec. 1259, R. S. 1919. (2) (a) Even if the question of whether Black river is navigable or non-navigable were one of fact for the jury, the burden of showing that it was navigable would be on the defendant. 29 Cyc. 293; McKinney v. Northcutt, 114 Mo.App. 146, 89 S.W. 165; Gould on Waters (Third Ed.), sec. 112. (b) This question having been submitted to the jury on conflicting evidence, the finding cannot now be disturbed. Flynn v. Burgess et al., 259 S.W. 147; Dilworth et al. v. Buchanan, 260 S.W. 279; Langley v. Federal Land Co., 261 S.W. 688. (c) An appellate court does not weigh the evidence. Milzark v. National Biscuit Co., 259 S.W. 832. (3) (a) The action of trespass is given for an injury to the property itself, rather than for an injury to some person's right therein. 38 Cyc. 1004. (b) The gist of trespass is the injury to possession. 38 Cyc. 1005; Cox v. Baker, 81 Mo.App. 181; Masterson v. West-End Narrow-Gauge R. Co., 5 Mo.App. 575. (c) Possession unsupported by evidence of title is sufficient to maintain trespass against a wrongdoer. Russell v. Thorn, 1 Mo. 390; Richardson v. Murrill, 7 Mo. 333; Watts v. Loomis, 81 Mo. 236. (d) Where actual possession is shown title is not material. Title is of importance only where it is necessary to show constructive possession. 38 Cyc. 1005; Brown v. Hartzell, 87 Mo. 564. In the case at bar defendant under a general denial merely, by attempting to prove (in the face of judicial knowledge to the contrary) that Black river was, at a point about four miles up stream from Poplar Bluff, a navigable river, that the possession of the bed of the river was in the United States. In a case where by a special plea it was attempted to set up title in the United States, it was held that inasmuch as possession, without title, was sufficient to maintain the action of trespass, the special plea was bad. Richardson v. Murrill, et al., 7 Mo. 333. The right to maintain trespass rests upon possession, and the defendant cannot show a want of title in the plaintiff as a...