Keeton v. Audsley

• Decision Date: 31 January 1854
• Citation: 19 Mo. 362
• Parties: KEETON, Respondent, v. AUDSLEY, Appellant.
• Court: Missouri Supreme Court

19 Mo. 362

KEETON, Respondent,

v.AUDSLEY, Appellant.

Supreme Court of Missouri.

January Term, 1854.

1. An entry of public land gives no title to timber cut and lying upon the land at the time of entry.

Appeal from Saline Circuit Court.

Hayden, for appellant.

Keeton, by his entry of the land, acquired no title to timber cut prior o the entry. The timber remained the property of the United States, and the injury, if any, done by Audsley, was to the United States, and not to Keeton. The cases of Turley v. Tucker, 6 Mo. 583, and Gale v. Davis, 7 Mo. are consistent with this position. The plaintiff cannot recover any damages for a mere breach of his close, because he does not claim any in his petition, nor was there any evidence that his close was broken.

Napton, for respondent, relied upon Gale v. Davis, 7 Mo. 545.

SCOTT, Judge, delivered the opinion of the court.

This was an action for wrongfully entering upon the plaintiff's land, and for cutting timber and carrying it away. The answer consisted of denial of the matters stated in the petition. The facts were, that Audsley, the defendant, had a set of house logs cut upon the public land, and afterwards Keeton, the plaintiff, entered the land, and Audsley, after Keeton's entry, hauled the logs away. There was no evidence in the cause on which any instruction could be based, relative to the right of the plaintiff to any portion of the land by accretion.

The court gave the following instruction, asked by the plaintiff: “If the jury believe from the evidence, that the defendant entered upon fractional section, south of the Missouri River, numbered twenty-one, in township fifty-three, (53,) range 20, and carried away timber or house logs, cut and lying on said land, they will find for the plaintiff; provided they are satisfied from the evidence, that said fractional section has been and was, at the time of said entry and carrying off said logs, the property of plaintiff; and notwithstanding they may also believe said logs were cut upon said land, prior to the entry thereof by the plaintiff.” And refused the following instructions asked by defendant: “That, to enable the plaintiff to recover in this action, it devolves upon him to show to the jury that the defendant cut and carried away the timber of the plaintiff, as stated in his petition.”

“That, if they find from the evidence, that the defendant procured Ira Tilman to cut and hew the house logs mentioned by the witnesses, before the plaintiff entered or purchased the land of the United States, and that the defendant, after the purchase by plaintiff, hauled the logs from and off of the land, then the plaintiff cannot recover of the defendant any damages for the timber or the logs so hauled off of the land by the defendant.”

“That in this case, the plaintiff has not claimed of the defendant any damages for an injury to his, plaintiff's land, by reason of the mere entry upon and return of his wagon and team upon his land, and therefore the plaintiff cannot recover of defendant any damages therefor.”

1. The action is for entering on land and cutting timber and carrying it away. The word “timber,” in common parlance, is applied to standing trees, and to wood proper for buildings, utensils, furniture, ships &c. Yet, in law, timber means certain trees useful for building, or the like. Taking the word in its popular sense, when it is used in connection with the word “cut,” it is understood usually to apply to standing trees. When we say, one cut timber on another's land, the...