Pioneer Cooperage Co. v. Bland

• Decision Date: 03 October 1934
• Citation: 75 S.W.2d 431,228 Mo.App. 994
• Parties: PIONEER COOPERAGE CO., APPELLANT, v. GEORGE BLAND AND JOHN FOSTER, RESPONDENTS
• Court: Missouri Court of Appeals

75 S.W.2d 431

228 Mo.App. 994

PIONEER COOPERAGE CO., APPELLANT, v. GEORGE BLAND AND JOHN FOSTER, RESPONDENTS

Court of Appeals of Missouri, Springfield

October 3, 1934

Rehearing denied, November 9, 1934.

Appeal from the Circuit Court of Dent County.--Hon. J. H. Bowron Judge.

Judgment affirmed.

E. W Bennett and S. A. Cunningham for appellant.

Wm. P. Elmer and G. L. Gamblin for respondents.

ALLEN, P. J. Bailey and Smith, JJ., concur.

OPINION

ALLEN, P. J.

In substance, the pleadings are as follows:

Plaintiff is a corporation, under the laws of Missouri.

That on the 30th day of September, 1931, it was the owner of and lawfully entitled to the possession of certain goods and chattels to the value of $ 182.13, described as follows:

4,000 feet of oak inch lumber, lengths 8 1/2 to 14 1/2

180 switch ties, sixe 7 x 9--lengths 8 1/2 to 14 feet,

now stacked on the right-of-way of the Frisco Railroad in Salem, Missouri. And that afterwards, on the same day defendants wrongfully took said property from the possession of the plaintiff and still unjustly detains the same at the County of Dent, aforesaid, to the plaintiff's damage, in the sum of $ 10.

Wherefore, plaintiff demands judgment against defendants for the recovery of the possession of said goods and chattels and $ 10 damages for their taking and detention; and in case delivery of property cannot be had then plaintiff prays judgment for $ 182.13 the value thereof.

Defendants, for answer, filed a general denial, and further stated that they were the vendees and Susie K. Smith was the vendor of said growing timber, said timber being on and a part of certain realty in Shannon County, Missouri, of which Susie K. Smith was the owner, and that the lumber and ties were manufactured from timber which was growing upon the said land; and that these defendants severed said trees from the soil belonging to Susie K. Smith. That the plaintiff herein and the said Susie K. Smith were adjoining landowners and that the trees severed as aforesaid, were located upon land which the said Susie K. Smith had claimed as her own, and which she had been in possession of adversely, notoriously and openly for a period exceeding ten years. Defendants further state that the plaintiff recognized a certain boundary line dividing the land of Susie K. Smith and the Pioneer Cooperage Company and that the trees were cut from said land belonging to Susie K. Smith, and so recognized by plaintiff, until recently when, prior to the institution of this suit, they had the land surveyed by their own surveyor. Defendants further state that the said Susie K. Smith does not recognize the line so surveyed, but still claims title to the land from which said trees were cut.

Defendants pray the court to adjudge them entitled to the possession of said lumber and ties, or judgment for the value thereof, together with damages in the sum of $ 500, for the wrongful institution of this suit.

L. P. Coleman testified:

That he had been employed for the past eight years by appellant, and had thirty years' experience in estimating timber and running lines. Knew the location of the NW 1/4 of Sec. 28, Twp. 31, Range 5, Shannon County, owned by the appellant. Also knew land east of the appellant's land, known as the Bealert farm. Had made an inspection of the appellant's land in October, 1931. That there was a fence along the west line of the Bealert farm. West of the fence is in timber and a strip had been cut into the timber by respondents. Their mill is located on Pioneer Cooperage Company's land. There were 24,396 feet of timber cut; it was sawed into switch ties and tie siding and taken to Salem and stacked on the right-of-way of the railroad.

CROSS-EXAMINATION:

Had noted the timber cut on west side of the fence from the stumpage. Didn't see is cut or hauled. Bland and Foster told him they hauled the timber down to the mill and shipped it away. They said the timber replevined came off the strip of land west of the fence. They were not cutting off the Susie K. Smith land, this timber came off the Pioneer Company's land. Saw some of it unloaded. The fence was a wire fence, on about as straight a line as a man could run if he was trying to follow a line. It was about a quarter of a mile long. The timber replevied had been sold; the ties were sold for $ 132.64 and tie siding for $ 48.49. This was the price Bland and Foster had contracted the timber for. That was all the lumber he got under the replevin. There were 24,396 feet cut. They replevied about 14,274 feet, which was short 10,112 feet, which he knew nothing about. He scaled everything marketable that was cut.

W. W. Paulding said he lived in Shannon County about forty-five years. Was county surveyor about five years. Had experience in surveying since 1881. Knew the NW 1/4 of 28-31-5, Shannon County, Missouri. Also knew the NE 1/4 which belonged to Bealert. That appellant company owned the NW 1/4 of Section 28. He ran the line on the west side of the Bealert land at his request, about twenty-five years ago, but was not county surveyor.

"BY MR. ELMER: I object to any line he ran. They can't bind anybody by a line of that kind, if he wasn't the county surveyor.

"BY MR. CUNNINGHAM: I understand he run it at the request of Mr. Bealert, and they were together. I think that would be sufficient evidence to establish the line between him and the other fellow.

"BY MR. ELMER: It might establish it between Bealert and him, but it wouldn't establish it as to a subsequent owner, because they bought it according to a legal survey."

Objection was sustained to which appellant excepted.

"There is a fence on the west side of the Bealert farm. Mr. Bealert put it there just a little while after I made the survey. The fence is practically straight.

"Q. Is that fence located on the line of the survey that you made at the time?

"BY MR. ELMER: I object to that as immaterial.

"BY THE COURT: Sustained."

T. J. Humphreys, testified as follows:

"I have been county surveyor of Shannon County for about twenty-four years. Am acquainted with Sec. 28-31-5. I ran the center line of 28 for the Pioneer Cooperage Company about three months ago. I noticed the fence when I ran the line and I ran on the inside of the fence about eight feet. I started from the south half section corner. I noticed a saw mill on the west side of the line I ran. I noticed timber cut on the west side of the fence."

"Q. I understand you started at the south center section corner? A. Started at the half section corner of the south half of twenty-eight.

"Q. And run the line north?

"BY MR. ELMER: We object to that. That's his conclusion about it. The statute provides how a survey shall be made.

"BY MR. CUNNINGHAM: Q. All right, go on and describe this survey up there.

"BY MR. ELMER: We object to that, he has got a record of it in his surveyor's record.

"BY THE WITNESS: Well alright here it is.

"BY MR. ELMER: I wasn't asking you for it, I said you had a record of it.

"BY MR. CUNNINGHAM: Q. Have you a plat of that land up there? A. Yes, sir.

"Q. Have you the field notes noted on there taken from the--field notes of the county? A. Yes, sir.

"Q. I will just ask you to state to the jury your survey of that land taken from the field notes as you have it.

"BY MR. ELMER: I object to that because he is supposed to make a record of the survey of this, and the record is the best evidence.

"BY MR. CUNNINGHAM: If the Court please, the record is a part of the office of Shannon County and he has no right to bring it up here.

"BY MR. ELMER: Well he is the custodian of it, isn't he?

"BY THE WITNESS: I wasn't requested to bring it up here.

"BY MR. ELMER: The record is the best evidence and they can't prove it by any other way except the record.

"BY MR. CUNNINGHAM: Q. Have you a memorandum of your record made of this with you? A. No, I sure haven't that's at Eminence. The only thing I have is my plat and the corner started from.

"Q. Well as county surveyor, you run the line north and south through the center of twenty-eight did you? A. Yes, sir.

"Q. I will ask you to state to the jury where that line runs in relation to the C. B. Bealert farm, the fence?

"BY MR. ELMER: I object to that because the record of his survey is the best evidence and he hasn't shown he has made a legal survey and that can only be shown by the record."

Objection sustained.

To which action of the court in sustaining this objection on the part of the defendant, the plaintiff in open court, by counsel, objected and excepted at the time.

"BY MR. CUNNINGHAM: If the Court please, it looks to me we have proven by Mr. Paulding that in connection with Mr. Bealert he run the line and Mr. Bealert put the fence there and I am now asking which side of the fence his line went on.

"BY THE COURT: You are trying to establish a line by survey?

"BY MR. CUNNINGHAM: Yes, sir.

"BY THE COURT: What is the best evidence of that survey? Is it the oral statement or the record that was made at the time of the survey?

"BY MR. CUNNINGHAM: Well, that's a matter that is up to the court.

"BY THE COURT: There's a record made of that survey, and if it is objected to, they are entitled to the best evidence.

"BY MR. CUNNINGHAM: If I was asking as to a specific line, that would be true, but I am just asking where his line run with reference to that fence.

"BY THE COURT: Suppose his line does not amount to anything, now does it unless he established it by the notes he made at the time?

"BY MR. CUNNINGHAM: He couldn't tell where the fence was?

"BY THE COURT: It seems to me if you established the fence, then you have got no line. If he is going to establish a line by a survey, I think the record is the best...