Maston v. Fanning
| Decision Date | 31 July 1845 |
| Citation | 9 Mo. 305 |
| Parties | MASTON v. FANNING. |
| Court | Missouri Supreme Court |
ISAAC N. JONES, for Plaintiff. 1. To entitle Fanning to recover in this action, he was bound to prove the commission of a trespass by Maston, and the amount of damages resulting therefrom. 2 Starkie's Ev. 802. 2. That if Maston had a pre-emption right to the land at the time the timber was cut, he was not liable in this action. See acts of Congress, 1838-40; 9 Mo. R. 183, Lewis v. Lewis; 2 Starkie's Ev. 815. 3. That a deed, patent, or receiver's certificate, is no evidence of title being in the purchaser prior to their date. 8 Mass. 230, 239; 9 Mass. 307, 310; 12 Mass. 456, 463. 4. That the purchase of the pre-emption claim from Ellsworth by Fanning conferred no title to the land on Fanning. See acts of Congress, 1838-40. 5. That a pre-emption right was the only title which Fanning could have had to the land at the time the timber was cut, and that Maston had a right to refer that title to the jury under the instruction of the court, as presented in the fourth refused instruction. 6. That the damages are excessive. The evidence showing that the principal part of the timber was cut by Fanning's consent, and that the value of the timber and damage done the land did not exceed $100. 7. That the evidence in relation to the purchase of the claim by Fanning from Ellsworth was illegal, and calculated to mislead the jury, and ought to have been rejected.
W. B. ALMOND, for Defendant. The counsel for Fanning insists that the decision of the court herein is right, and should stand, for the following reasons: 1. Fanning clearly shows himself by the testimony, and by the receiver's receipt, offered and read in evidence without objection, entitled to a pre-emption right under the act 4th September, 1841, and that during the time he was so entitled Maston cut and carried off the timber sued for. 2. The proof introduced by Maston to sustain his plea of license amounts to nothing; it only shows that for the sake of peace Fanning agreed that Maston might cut and use and improve with the timber on the southwest quarter of said tract of land, on said land, but that, by the plainest implication, the timber was not to be removed off the land. This clearly was no license to strip the southwest quarter of said tract of land of its most valuable timber, and haul it off to another tract. Besides Maston cut timber on other parts of said tract of land, and moreover, Maston does not complain as to his instruction as to license, for that instruction was given to the jury, and they find against him on that issue. 3. To show clearly that Fanning was entitled to the exclusive pre-emption right on the land named in the declaration from the time he settled on it to the commencement of the suit, the counsel for Fanning refers to the whole of the testimony given in the cause, and the act of Congress, “to distribute the proceeds of the sales of the public lands, and to grant pre-emption rights,” approved September 4th, 1841. 4. To show that Maston forfeited all right which he pretended to set up by pre-emption under the act of Congress of 1st June, 1840, by his sale and gift to Munn, Ellsworth and Fanning, as detailed in evidence, the counsel for Fanning refers to the affidavit required by said act, reviving the act of Congress of 22nd June, 1838. And further, the testimony shows that Maston entered and paid for another and different tract of land, under act of June 1st, 1840. 5. To show that trespass can be maintained on a pre-emption right. See Rev. Code of 1835. p. 237.
Joseph Fanning brought his action of trespass quare clausum fregit, against Matthias Maston, to the October term, 1844, of the Platte Circuit Court, at which term the defendant filed a plea of not guilty, and a special plea that he had license from the plaintiff. Issue having been taken, the parties went to trial before a jury, which resulted in a verdict in favor of the plaintiff, and an assessment of $100 for his damages. The defendant filed his motion for a new trial, assigning the usual causes, which being overruled, he excepted to the opinion of the court, and now brings his case here by writ of error.
Henry F. Howard, a witness on the part of the plaintiff, stated, that he was the step-son of the plaintiff; that early in the year 1841, the plaintiff arrived in Platte county, a stranger, and shortly thereafter was taken sick and confined to his bed. That plaintiff had a large family, and wished to purchase a home for himself and family to live on; that he, plaintiff, heard that one Ellsworth had a good place to sell, but he heard at the same time that Maston, the defendant, claimed or had claimed it. Plaintiff being sick in bed and unable to go himself, requested witness to go and see Ellsworth and his place. Witness went accordingly--saw Ellsworth and his place--was pleased with said place and the price, and went to see Maston, the defendant, also. Witness told Maston that Fanning had sent him to see said Maston; that Fanning had heard that the Ellsworth place was for sale; but that he had heard that Maston once claimed it by pre-emption, and lived on it, and Fanning wished to hear from him, Maston, and know all about it before he would buy of Ellsworth. Maston then told witness that he had once claimed and held a pre-emption right thereon, but that he had abandoned it and settled on the prairie quarter, where he was then living. That he did not like Ellsworth as a neighbor, and wished him out of the neighborhood--that he wished Fanning to buy said place of Ellsworth, for he, Maston, wished from what he had heard of him, to have Fanning for a neighbor. That one James Munn had a claim to the north half of the quarter section of land in the prairie, on which he, Maston, was living. That he, Maston, wished to buy out and extinguish said Munn's right to said north half, and that said prairie quarter was all that he wanted--that if Fanning, the plaintiff, would aid and assist him in effecting a compromise with said Munn, by which he, Maston, could buy out said Munn's interest in said north half of said prairie quarter, and by which said Munn would abandon and give up said north half to said Maston, then defendant agreed that he would give up all his interest to Fanning in the Ellsworth place, and quit and abandon it forever to him; and that he, Maston, would pay him, witness, $20 for his trouble and aid in effecting said compromise. Witness further stated that shortly thereafter, he and Fanning did by their efforts succeed in effecting a compromise between said Maston and Munn, in the way above indicated by said Maston, and that Munn relinquished and abandoned all of his right to the said north half of said prairie quarter section of land, and that Maston relinquished and abandoned forever all his right to the Ellsworth place to Fanning. The Ellsworth place is the same quarter section of land described in the declaration in this case, and is situated in Platte county, Missouri. The witness further states, that immediately after this the plaintiff bought said place of Ellsworth, and paid therefor the sum of $300--erected a good dwelling house thereon--moved into and on it with his family, consisting of a wife and children, and has resided thereon as a housekeeper by personal residence, and made it his only home, from the time of his said settlement, which was sometime in the year 1841, to the present time. That at the time of his said settlement, Fanning was a free white citizen of the United States, and over the age of twenty-one years, and the head of a family consisting of a wife and children. That he, Fanning, did not quit or abandon his home or his own land to make the settlement aforesaid, and that at the time of said settlement, Fanning was not owner nor proprietor of 320 acres of land in this or any other State or territory; and that at the time of said settlement or since, Fanning did not and has not owned any land any where except the quarter section named in the declaration, and that at the time of and previous to the settlement, the Indian title had been extinguished to said quarter section of land, and it had been surveyed by the government of the United States. Witness further states, that some time in the year 1844, said Fanning entered at the United States land office, at Plattsburgh, Mo., the quarter section of land named in the declaration, and before spoken of, under the act of Congress of 4th of September, 1841, by virtue of his settlement aforesaid. Witness further stated, that the quarter section of land in dispute and named in the declaration, was and is principally valuable on account of the timber on it--it being near a large prairie where timber is and must be valuable; and that shortly after Fanning settled thereon, and during the years 1842 and 1843, Maston with his hired hands cut down the most valuable timber trees, oaks, walnuts, hickory, and the other description of trees named in the declaration, on said quarter section of land, and carried and hauled them off the same, and converted them to his own use on another and different quarter section of land, to wit: the one on the prairie before spoken of. That most of said timber trees were cut down on and carried off the southwest quarter of the quarter in contest--but that a considerable number of the timber trees cut down and carried off as aforesaid were cut down on other parts of the quarter section named in the declaration. Witness states that Maston and his hands had made a complete destruction of the timber on the said southwest quarter of the land in dispute--witness had noticed closely, and often seen Maston and his hands cutting and hauling said timber off said land, and had often heard Fanning warn and notify him not to do so, and witness had examined the stumps, and the number of the trees taken from said land named in the declaration, and thinks the actual value of the timber cut down...
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