Ritchie v. State Board of Agriculture

• Decision Date: 27 June 1927
• Docket Number: No. 15669.,15669.
• Citation: 297 S.W. 435
• Parties: RITCHIE et ux. v. STATE BOARD OF AGRICULTURE.
• Court: Missouri Court of Appeals

297 S.W. 435

RITCHIE et ux. v. STATE BOARD OF AGRICULTURE.

No. 15669.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Rehearing Denied July 11, 1927.

Appeal from Circuit Court, Cooper County; Henry J. Westhues, Judge.

"Not to be officially published."

Action by Charles D. Ritchie and wife against the State Board of Agriculture. Judgment for plaintiffs, and defendant appeals. Affirmed.

Montgomery & Rueter, of Sedalia, for appellant.

W. H. Bohling, of Sedalia, and Roy D. Williams, of Boonville, for respondents.

FRANK, C.

Plaintiffs in this action seek to recover damages from defendant for trespass upon lands belonging to plaintiffs. Plaintiffs recovered judgment in the sum of $1,000, and defendant appealed.

This case was here on a former appeal and is reported in 217 Mo. App. 202, 266 S. W. 492. Plaintiffs are husband and wife and at all times involved in this suit were the owners of 40 acres of land located in or near the city of Sedalia adjoining the state fair grounds on the east side. Defendant, desiring to use plaintiffs' land for state fair purposes, entered upon said lands and constructed a road through the 40 acres, dividing it into almost two equal parts. A grader was used in constructing this road and ditches from 8 to 12 inches deep were cut on either side of the road. Tents, electric light poles, comfort stations, and other conveniences were erected on the east 20 acres of this land for campers. Deep holes were dug for the erection of electric light poles, and tents, about 200 in number, were staked down and a trench was dug around each tent. During the first week of the fair heavy rains fell and the ground became very soft and muddy. During this time visitors occupied the tents on the land and large numbers of automobiles were parked on the east 20 acres.

Plaintiff Charles D. Ritchie testified that automobiles cut deep ruts all over the ground and ruined the soil; that the road across the land was so muddy at times that an automobile or wagon could hardly get through. Defendant's evidence tends to show that before it vacated the land the tents, light poles, etc., were removed therefrom, the fences repaired, the land leveled off and restored to its original condition. Opposing this, plaintiffs' evidence is to the effect that the land was not restored to its original condition; that the condition in which the land was left, occasioned by defendant's use in the manner heretofore set out, reduced the market value of said land more than the amount of the verdict.

The petition alleges that plaintiffs were the owners of the land and that defendant on August 7, 1921, entered upon the land and committed trespass thereon in the manner above set out and that defendant had no interest or right of any kind in said premises. The answer admits defendant's possession of 20 acres of the land, but alleges that such possession was under a contract with one Charles A. Culp, who was a tenant of plaintiffs at the time, and denies all other allegations in the petition. The reply was a general denial.

Defendant's own evidence shows that it entered upon the land and committed the acts complained of by plaintiffs. Defendant seeks to justify its possession and use of the land on two grounds: (1) That plaintiffs, by a written lease dated February 4, 1920, leased the lands in question to one Charles A. Culp for a term beginning March 1, 1921, and ending March 1, 1922; that by the terms of said lease Culp had a lawful right to and did sublease the east 20 acres of said land to defendant by a written lease dated August 8, 1921, for a term ending March 1, 1022; therefore its entry on said land was not unlawful. (2) That the injury done to plaintiffs' land, if any, was repaired and the land restored to its original condition before defendant vacated it.

At the trial of this cause defendant offered in evidence the lease from plaintiffs to Culp and the sublease from Culp to defendant for the purpose of showing that defendant's entry on the land was under a lease and was therefore lawful. Both offers were rejected by the court.

When this case was here on a former appeal (Ritchie v. State Board of Agriculture, 217 Mo. App. 202, 266 S. W. 492), the stipulations of the lease from plaintiffs to Culp were set out and discussed in the opinion then written. We held in that opinion that the lease from plaintiffs to Culp was a farm lease and the land leased thereunder was leased for farm purposes; that Culp had no right to sublease any part of said lands to defendant for any other purpose; that the sublease from Culp to defendant was void and defendant's entry on the land thereunder was unlawful and without right. The part of the opinion so holding reads as follows:

"We think there is no question but that plaintiffs leased the 40 acres to the Gulps for farm purposes, therefore the Gulps had no right to sublease it to the defendant for other purposes, whereas in fact they did sublet a portion of the land to the defendant by written contract, in which the use of the land was not restricted in any way whatsoever. Under such circumstances the sublease was void, and there is no doubt but that defendant's original entry upon the land was unlawful and without any right."

Defendant insists, however, that under the ruling of the Supreme Court in Moore v. Guardian Trust Co., 173 Mo. 218, 73 S. W. 143, the Culps had a right to sublease the property for any purpose they saw fit. This same contention was made on the former appeal of this case. We held then, and hold now, that the Moore Case is not in point for the reasons stated in our former opinion, to which we refer without repeating here.

We have again examined the provisions of plaintiffs' lease to Culp and Gulps' sublease to defendant and have carefully considered our former opinion construing these leases and are convinced that our former construction of such leases was correct. Under such circumstances the law as announced in such opinion is controlling on this appeal. Scott v. Realty & Improvement Co., 255 Mo. 76, 102, 164 S. W. 532. These leases afforded no justification for defendant's entry upon plaintiffs' land and were therefore properly excluded when offered in evidence.

It is contended that defendant's demurrer to the evidence should have been sustained because plaintiffs were not in possession of the land at the time in question and because the evidence does not show that defendant's entry upon the land was unlawful. There is no merit in this contention. A landlord claiming title may have trespass against a stranger who injures the freehold although the land be in the possession of a tenant at the time. Simmons v. Railway Co., 201 Mo. App. 477, 481, 482, 213 S. W. 149, and cases cited. The only justification offered by defendant for its entry upon the land is the lease from Gulps to defendant. This lease being void, defendant's entry thereunder was unlawful. The demurrer was properly overruled.

It is next insisted that the court erred in refusing to permit the witness McMahan to testify regarding his opinion as to the injury to the freehold. No error was committed in rejecting this otter of proof. It did not call for the proper measure of damages. The true measure of damages in this case is the difference between the market value of the land immediately before and its market value immediately after the injury we so held in our former opinion in this case. Ritchie v. State Board of Agriculture, 217 Mo. App. 202, ...