Holliday-Klotz Land & Lumber Co. v. Markham

• Decision Date: 04 March 1901
• Court: Missouri Court of Appeals
• Parties: HOLLIDAY-KLOTZ LAND & LUMBER CO. v. MARKHAM et al.

75 S.W. 1121

96 Mo. App. 51

HOLLIDAY-KLOTZ LAND & LUMBER CO. v. MARKHAM et al.

Court of Appeals at St. Louis, Missouri.

March 4, 1901.

REAL ACTIONS — TRESPASS — CUTTING TIMBER — ADVERSE POSSESSION — ISSUES — QUESTIONS FOR JURY — INSTRUCTIONS — HARMLESS ERROR.

1. Where, in an action for injury to possession of land, both parties claimed title under deeds from different sources, and defendant claimed adverse possession, the submission of the question of defendant's adverse possession only to the jury constituted a construction and interpretation of the deeds by the court, and a finding that plaintiff had the better paper title to the land.

2. Where the court sufficiently defined adverse possession in an instruction given, it was not error to refuse a requested instruction on such subject.

3. Where the court properly defined adverse possession, and charged that actual possession of the land with the claim and exercise of rights of ownership would entitle defendant to a verdict, defendant was not prejudiced by an instruction that the jury should not consider the fact that defendant, under color of title, went on the land to cut timber, as evidence of adverse possession on his part, the jury being presumed to be capable of distinguishing between mere entry to cut timber and facts showing actual possession with the claim and exercise of rights of ownership.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Action by Holliday-Klotz Land & Lumber Company against one Markham and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

The court gave of its own motion the following instructions: "No. 1. That if you believe and find from the evidence in the case that the defendants, some time in the years 1897 and 1898, entered in and upon the southeast quarter and southwest quarter of section 29, township 27, range 4 east, and the northeast quarter of the northeast quarter of section 31, township 27, range 4 east, and cut and carried away timber from the lands, your verdict should be for the plaintiff, and you should assess his damages at such sum as you may find from the evidence the timber so taken was reasonably worth at the time it was taken, not to exceed the sum of two thousand dollars, unless you should further find that at the time the timber was so taken the defendants were in the actual possession and occupancy of said land claiming same adversely to the plaintiff. No. 2. You are further instructed that if you believe and find from the evidence that at the time the timber was so taken the defendants, by themselves or their tenants, were in the actual possession of the said lands, claiming and exercising the rights of ownership over the same, your verdict should be for the defendants." And at the request of the plaintiff the following instruction: "No. 3. The court instructs the jury that if you find from the evidence that the defendants, after the deed introduced in evidence by the defendants was made by the Wayne County Land & Investment Company to Markham, simply went upon the lands described in said deed for the purpose of cutting and removing timber from such lands, then such acts of defendants do not constitute such possession of the lands as will defeat plaintiff's action." It refused the following instruction, requested by the defendants: "No. 4. The court instructs the jury that the quitclaim deed from the Wayne County Land & Investment Company to Jeff Markham, one of the defendants in this case, embracing the land in dispute, is sufficient to constitute color of title in defendants; and you are further instructed that if you find from the evidence that defendants, after obtaining said deed, entered into actual, continuous, visible possession of said lands, and so remained in possession thereof until the institution of the plaintiff's action herein claiming the same adversely to the plaintiff, and that the said timber and trees were by the defendants cut down and removed from the said lands by the defendants when they were thus in the possession of the said lands, then you will find the issues for the defendants."

M. R. Smith, for appellants. James F. Green, for respondent.

BOND, J.

1. Plaintiff's action was for injury to possession of land. It could be sustained, therefore, only on one of two theories: First, that plaintiff was in the actual possession of the land when the trespass was committed; second, that the land was not in the actual possession of any one, but was in...