Kincaid v. Logue

• Decision Date: 30 September 1841
• Citation: 7 Mo. 166
• Parties: KINCAID v. LOGUE.
• Court: Missouri Supreme Court

7 Mo. 166

KINCAID

v.LOGUE.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY.

STUART & MILLER, for Plaintiffs. 1st. An entry upon the possession of another (with or without title) without his consent, is in contemplation of law a forcible entry. 4 Bibb, 389, 426; 3 Marsh. 347. 2nd. That from the evidence in this case, the plaintiff, Kincaid, had such possession of the land mentioned in the complaint, as would entitle him to maintain the action of forcible entry and detainer, and that the court erred in refusing him a new trial. 3rd. That the possession of land is not limited, in contemplation of law, to such part as may be in actual cultivation, or has been appropriated by the person in possession to his own use, by labor or improvement thereon, but such possession extends to the boundaries of the tract upon which he has his improvement. 4 Bibb, 389, 426; 3 Marsh. 347; 3 Lit. 398; 1 Monroe, 52; Boyce v. Blake, 2 Dana, 12. 4th. That if Kincaid had possession of the land, no matter with what intention he took possession, the defendant could not lawfully forcibly enter upon and detain the same from him. 5th. That the court erred in overruling the plaintiff's motion for a new trial, and in arrest of judgment.

BURNETT, for Defendant. 1st. The court did not err in giving the instrnctions given to the jury. 2nd. The court committed no error in refusing the instructions offered by the plaintiff. 3rd. The court committed no error in refusing to grant a new trial.

TOMPKINS, J.

Kincaid commenced his action for forcible entry and detainer against Logue, before a justice of the peace, and removed the cause by writ of certiorari to the Circuit Court of Platte county. In that court a verdict was found, and judgment given for the defendant, and to reverse this judgment the plaintiff appeals to this court. The bill of exceptions shows, that about the year 1837, Kincaid, plaintiff and appellant in this cause, claimed the exclusive possession of the land in his complaint to the justice mentioned, about eighty acres; that he had bought an improvement made on it by one Brooks: that along with this land the plaintiff, in the fall of the year 1837, had inclosed about two hundred and forty acres of land, with the worm of a fence, and a fence built on said worm; that in some places said fence was three or four rails high, in others two, and in others one rail high; that there were gaps in said fence in several places; that several public roads ran through said land inclosed as aforesaid; that the plaintiff, Kincaid said his object was by the inclosure to make pastures; and to keep off intruders; that the defendant entered into this land after said inclosure was made, without the consent of the plaintiff; that all the land claimed by Kincaid belonged to the United States; that within this land inclosed by Kincaid, and claimed in this suit, Kincaid had built a cabin, and that Logue had also built a cabin within such inclosure; that Logue's cabin was situated about three or four hundred yards from that of Kincaid; that Kincaid cut timber on said land, and did other acts by which he manifested his claim to the right of possession of the land; that the worm of said fence was made of logs and poles, in many places of unequal lengths and sizes, some ten and others twenty feet long. A witness on the part of the defendant stated that the fence was as represented by the...