Stephen C. King's Adm'r v. St. Louis Gas Light Co.

• Decision Date: 31 March 1863
• Citation: 34 Mo. 34
• Court: Missouri Supreme Court
• Parties: STEPHEN C. KING'S ADM'R, &C., Respondent, v. THE ST. LOUIS GAS LIGHT COMPANY, Appellants.

34 Mo. 34

STEPHEN C. KING'S ADM'R, &C., Respondent,

v.THE ST. LOUIS GAS LIGHT COMPANY, Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

This was an action of forcible entry and detainer brought by S. C. King to recover the possession of a piece of land on the shore of the river, in St. Louis.

Plaintiff proved by J. G. Barry that he was agent for plaintiff, and fenced the land in dispute in the winter of 1858; that the fence remained till the spring or summer of 1858, when it was carried off by the high freshet of that year; that he then put up a notice, and kept it on the land, saying it was for rent by him; that, some time in the following winter, he went down there and found the defendants' agents fencing up the land; that he forbid them doing it, and ordered them to stop, which they disregarded; that he told them who had possession of the land and claimed it, (to-wit, the plaintiff King); that he put a man on the lot, who remained there till he was fenced in by defendants' agents.

The defendants introduced testimony tending to show that they were formerly in possession of the land, and had fenced it, but that the fence put there by them had been gone a good many years before the plaintiff put a fence there; that they had used the land to throw waste matter from their gas works upon, or haul sand from; that their possession extended from their works to the river.

Plaintiff introduced evidence tending to show that defendants never had possession of the premises, and that they had been vacant many years before plaintiff fenced them.

The court instructed the jury as follows for the plaintiff:

1. The jury have nothing to do with the title of either party to the ownership of the land. It is a question of possession only in the plaintiff, and of a forcible entry and detainer by the defendants. Therefore, if the jury find that the plaintiff was in peaceable possession of the land, and that the defendants, acting by their agents or servants, entered upon the same against the will of the plaintiff and took possession thereof and detained the possession, the verdict must be for the plaintiff.

2. The jury are instructed that, to justify a verdict for the plaintiff, they must believe from the evidence that the said plaintiff was in actual possession of the premises at the time of the forcible entry here complained of; but they are also instructed that by actual possession is not meant that the plaintiff should stand upon the land, or keep his agents or servants there, to keep off trespassers or intruders; but that any act done by plaintiff, or his agent, indicating an intention not to abandon the premises, but to keep and hold the possession thereof to himself, will retain the possession in him.

For defendants, the court gave the following instruction:

1. If the jury find from the evidence that the defendants had the possession of the premises in question and fenced the same prior to the time the plaintiff took possession of the same; if the fence so put up by the defendants was afterwards washed away by the action of the river, and thereby the premises became vacant and unenclosed; and if, after the premises became vacant and unenclosed, the plaintiff went upon the premises and put up a fence around the same, without the consent of the defendants, and with knowledge of their claim thereto; if, afterwards, the fence so put up by the plaintiff was washed away by the river and said premises again became vacant and unenclosed, and the defendants thereafter, without force or violence, and while no person was in possession of said premises, peaceably went upon the premises and fenced the same, then the defendants are not guilty of the forcible entry and detainer charged in the complaint, and the jury should find for the defendants.

The court refused the following instructions asked for the defendants:

1. If the jury find from the evidence that the defendants' possession, in 1847, of the premises on which the gas works stood extended to the Mississippi river; that said river has been gradually receding since that time; that, in 1851, the defendants caused the premises between the gas works and the river to be fenced; that the defendants used said land for the purpose of hauling sand therefrom for several years; that the fence of the defendants was washed away and the posts in part buried by the sand of the river; and that the plaintiff built a fence on the premises in January, 1858, which was washed away by the flood of 1858, and that the said fence was built there against the will of the president of the gas company and the defendants, and that after said fence of plaintiff was washed away...