Turley v. Tucker

• Decision Date: 30 September 1840
• Citation: 6 Mo. 583
• Parties: R. AND A. P. TURLEY v. TUCKER.
• Court: Missouri Supreme Court

6 Mo. 583

R. AND A. P. TURLEY

v.TUCKER.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF STE. GENEVIEVE COUNTY.

COLE, for Appellant. 1st. The Circuit Court erred in refusing to give instructions 1, 2, 6, 7, 8, 9, 10, as required by defendant, and in giving the instructions asked by plaintiff. 2nd. That the appellees were trespassers, and cut the timber in the declaration mentioned on the land of the United States, without any view to settlement, cultivation, or obtaining an interest therein, and as such trespassers acquire neither in virtue of public policy, nor law, a general or special property in the timber cut so as to enable them to maintain the above action. 3rd. That the plaintiffs must show, in order to maintain the above action, that they had either a general or special property in the timber converted, and that they had the actual possession thereof, or the right to immediate possession. 4th. That when a plaintiff recovers in trover the defendant by operation of law obtains a title to the property in controversy, and the plaintiff gets the value in damages. 2 Kent's Com. 319. 5th. That in trover defendant may show title in a stranger paramount to that of plaintiff as a bar. 14 Johns. R. 128. 6th. Trover may be brought by the person having either a general or special property, but a recovery by one is a bar to an action by the other. 1 Chitty's Pl. 152. 7th. Absolute or general property in chattels is where possession is united with the exclusive right to enjoy them, special property is the mere possession of property by one with the assent of the true owner. Webb v. Fox, 7 D. and East, 391. 8th. That there was no law of the government of the United States at the time the above trespasses were committed by appellees, that gave them authority to cut timber upon the public domain, or a right to such timber, or a right of possession in the land without the purchase thereof according to law. Act of Congress 19th June, 1834.

BRICKEY, for Appellee. 1st. Can the action of trespass or trover be sustained by one who cuts wood or timber upon public land, the right of soil remaining in the United States, against a wrong doer who takes it off and converts to his own use? 2 Starkie's Ev. 837; 2 Phil. Ev. 121; 6 Bac. Abr. 707. 2 Saund. R. 47, (note 1); 1 Camp. R. 551, Greenstreet v. Carr; 3 Mo. R. 393, James and Massie v. Snelson. 2nd. Did the court misdirect the jury as to the law of the case, and thereby commit such error as to entitle the defendant to a new trial? 2 Caine's Cases, 83, Depyster v. Colo Ins.; 3 Mo. R. 382, Homes v. McKenney. 3rd. The court was not bound to give instructions to the jury upon abstract propositions of law: Therefore, the instructions asked for by the defendant and not given, were properly rejected by the court, there being no evidence in the case to warrant the court in giving such instructions, and had they been given it would have been error. 4th. The deposition of Burks offered by the defendant was very properly excluded by the court. 5th. The 3rd, 4th and 5th instructions asked by the defendant and given by the court contain all the law of this case scattered through all the other instructions which were asked for and refused by the court.

NAPTON, J.

The Turleys sued Tucker in an action of trover, and had a judgment for three hundred and seventy-five dollars. On the trial the following facts appeared: The plaintiffs were owners of a saw mill, and in the spring of 1837 employed some ten or twelve hands to cut down trees in a pinery about three miles from their mill, and within a half a mile of the saw mill belonging to Tucker. The hands employed cut down twelve or fourteen hundred trees, cut off the tops, and marked them in convenien lengths for stocks. The Turleys hauled away some of the logs, but Tucker some time in the fall hauled away some two or three hundred of the same logs. Tucker's mill sawed from twelve to twenty-five stocks per day, and Turley's mill ran about one-third of the time, and sawed from one thousand to twelve hundred feet of plank per day. It was admitted that the logs were cut on the public land. The instructions refused to be given by the court, at the instance of defendant, it is unnecessary to insert, as they were in substance that the action could not be sustained on the facts above specified. Two of them will be sufficient to illustrate some points in the case. The seventh instruction which the court refused was as follows: “If the jury shall find from the evidence in the cause, that the plaintiff cut down the timber, in the declaration mentioned without a bona fide view to its use, and did not use the same, the timber being and appertaining to the public domain, and lying as cut down from the first of March, 1837, until the first of September, 1837, then the said plaintiffs are trespassers against the United States, and cannot recover against defendant for using a part of said timber.” The eighth instruction, which was also refused, was as follows: “If the jury shall find from the evidence that the plaintiffs cut the timber in the declaration mentioned upon the land of the United States without any view to settlement or cultivation of the land, or acquiring a right or interest therein, then the plaintiffs are trespassers and acquired no interest in said timber by virtue of said trespass, and cannot recover in this action.” The court gave the following instruction: “Although the logs might have been cut by the plaintiffs on public land for their own use yet they acquired such property in the logs, as will enable them to maintain an action of trover for the logs against a wrong doer.” A motion was made for a new trial which was overruled, and the case is brought here by appeal. The decision of a majority of this court in the case of Massie and James v. Snelson, 3 Mo. R. 393, undoubtedly embraces the only material question arising from the record now before the court. In venturing to question the conclusions to which the court in that case arrived, it is proper that I should examine somewhat at large the grounds of that decision.

To maintain an action of trover at the common law, the plaintiff must have a property either absolute or special and the possession or right to the immediate possession of the goods which are the subject of controversy. 2 Wheat. Selw. 1050; 6 Bac. Abr. title, Trover, C. There is no pretense that the plaintiff had any absolute property in the subject matter of the controversy. Had they such a special property as would maintain trover?

The special property spoken of by the books as sufficient to maintain the action oftrover, is of two kinds, and of two kinds only. The first is that property which is founded on a mere possession, held subject to the claims of the absolute owner. The other is a temporary property without possession, only one instance of which I have seen recorded in the books, Roberts v. Wyatt, 2 Taun. 268, and which has no affinity to the present case.

The first class of special property arising out of mere possession, and which will sustain the action of trover against a mere wrong doer, is the only kind which bears upon the case under consideration. The authorities are very clear that mere possession is sufficient prima facie evidence of property to maintain this action against a wrong doer.

1st. Did the plaintiff by cutting the timber on the land of the United States acquire such possession? The entire argument upon which the plaintiff's right is sustained, is founded, I think upon a mistaken interpretation of the general law maxim just alluded to. The cases of special property referred to by the authorities in illustration of that maxim, are that of a bailee, a carrier, a lessee for life, a lord who seizes an estray, a sheriff who has levied on goods, and the finder of a jewel. In all these cases, and every other instance of special property founded on possession, the possession has been a peaceable and lawful possession, or a possession acquired by some shadow of title from the absolute owner. There is no case of a mere trespasser, acquiring by his trespass, constructive possession. It seems to be contrary to the settled usages of law, for courts to interfere in such cases, and aid one trespasser against another. For the peace of society, the law will interfere so far as to protect actual possession, but will not raise a presumptive possession as the foundation of a special property. This appears clear not only from the very language in which this doctrine is couched, but from the reasons by which law writers have supported it. Mr. Starkie says, 3 Starkie's Ev. 1487, “If the action be brought against a mere wrong doer, the mere fact of possession by the plaintiff is usually sufficient evidence of title, even although the plaintiff claim under a title which is defective, for the possession of property is, as has been seen, prima facie evidence of ownership.

The only reason then why possession is sufficient to maintain this action is because it is...