Hickey v. Hazard

• Decision Date: 04 April 1877
• Parties: TIMOTHY HICKEY et al., Plaintiffs in Error, v. JAMES HAZARD et al., Defendants in Error.
• Court: Missouri Court of Appeals

3 Mo.App. 480

TIMOTHY HICKEY et al., Plaintiffs in Error,

v.JAMES HAZARD et al., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Apr. 4, 1877.

One having surveyed, marked, and staked off ice, unappropriated by another, upon a navigable river, and having expended money to preserve it and make it valuable for use, and as a commercial commodity, has a possession sufficient to support an action for trespass.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

A. R. Taylor, for plaintiffs in error, cited: Const. of Mo. (1865), sec. 2, art. 11; Benson v. Morrow, 61 Mo. 353; 7 Wall. 272; Tarry v. Brown, 34 Ala. 159; Craig v. Gilbreth, 47 Me. 416.

R. S. McDonald, for defendants in error, cited: 1 Schouler's Pers. Prop. 86; 1 Cooley's Bla. Com. 339; Broom's Leg. Max. 264; The State v. Pottmeyer, 33 Ind. 402.

BAKEWELL, J., delivered the opinion of the court.

The plaintiffs state in their petition that they are copartners, and that defendants are copartners; that on January 13, 1875, plaintiffs owned and were in possession of 1,000 tons of ice, worth $2,000; and that defendants violently and wrongfully drove plaintiffs and their servants off, and unlawfully took and carried away said ice, and converted the same to their own use, to the damage of plaintiffs $2,500, for which they ask judgment. The answer of defendants denies all the material allegations of the petition.

On the trial the plaintiffs introduced evidence tending to show that, in January, 1875, they had a contract with Wainwright & Co., of St. Louis, to deliver them ice at $1.75 per ton; that, for the purpose of fulfilling that contract, plaintiffs, during a hard frost, selected a spot on the Mississippi River, opposite the foot of Chouteau Avenue, in St. Louis, and on the eastern side of the stream, the ice being at that time gorged in the river, which was favorable to the making of good ice, the water being clear, and, owing to the eddy and slack-water there, the character of the ice forming being of a good quality; that the mass of the gorged ice in the river was utterly worthless, but that there were, here and there along the Illinois bank, patches of ice which, with proper attention, could be made of considerable value; that, so soon as the ice would bear, plaintiffs staked out their claim, marking it with stakes, and plowing all around it with a snow-plow a line about 360 feet in extent, thus inclosing a triangular patch of clear ice, the base of the triangle being about sixty feet; that plaintiffs engaged a flat-boat on the spot to remove this ice, and employed a body of men to watch it day and night, who kept it constantly swept and free from skaters; that otherwise the ice would have been spoiled for mercantile purposes from sand and drift-snow blowing upon it; that they retained, by themselves and their hands, constant actual possession of this piece of ice for about two weeks, and up to the date of the wrongs complained of, and expended in this work about $239, and thus gave to this piece of ice considerable commercial value; that the ice, at the date of the trespass, was about a foot thick, and worth about $1 per ton as it lay; that plaintiffs then had it surveyed and measured, and found it contained about 600 tons; that the claim was recognized as plaintiffs' by the neighboring barge-men and persons on the nearest bank, and that plaintiffs had obtained the written consent of a man residing on the bank opposite to this ice to cut ice in front of his premises; that, about January 13th, and as soon as the ice was ready to cut, one of the defendants, armed with a pistol and accompanied by about fifty men in his employ armed with clubs and ice-picks, by threats and violence, drove plaintiffs and their hands from the ice, in spite of the remonstrances and resistance of plaintiffs and their men--one of defendants declaring that he would have the ice if it cost $1,000 or a life; that a shot was fired; that defendants were overpowered by a force very greatly superior to their own, and compelled to retire; that one of plaintiffs at once proceeded to Belleville to institute legal proceedings to restrain defendants from cutting this ice, but did not succeed in getting proper service, or service in time; and that defendants, with their hands, proceeded at once to cut up this area of ice which had been occupied by plaintiffs, and carried the same away and stored it.

These facts were testified to on behalf of plaintiffs by a large number of witnesses.

At the close of plaintiffs' case, defendants asked an instruction in the nature of a demurrer to the evidence, which was given by the court, and plaintiffs took a nonsuit. The court refused to set the nonsuit aside, and plaintiffs appealed.

We do not know why plaintiffs were not allowed to go to a jury with their case. Their testimony clearly showed the commission of a high-handed outrage in violation of plaintiffs' rights. If there were no remedy for such a wrong as this, our boasted civilization would be a farce, and men would be left to contend like wild beasts for their rights of person and property, and each weaker individual would be completely at the mercy of his superior savage. We think that plaintiffs had an appropriate remedy, and should have recovered on their...