Underwood v. City of Caruthersville

• Decision Date: 08 May 1917
• Parties: C. C. UNDERWOOD, Respondent, v. CITY OF CARUTHERSVILLE, Appellant
• Court: Missouri Court of Appeals

194 S.W. 1090

197 Mo.App. 358

C. C. UNDERWOOD, Respondent, v. CITY OF CARUTHERSVILLE, Appellant

Court of Appeals of Missouri, St. Louis

May 8, 1917

Appeal from Ste. Genevieve Circuit Court.--Hon. Peter H. Huck Judge.

Judgment reversed.

Vance J. Higgs and A. Sloan Oliver for appellant.

C. G Shepard for respondent.

(1) Under the law of Missouri, as it has been written from the very first utterance of our Supreme Court down to the present time, the possession of plaintiff was such possession as the law will recognize and protect. It has been repeatedly stated by the appellate courts of this State that the party need not actually be on the land, or keep servants there, but any act done by him on the premises indicating intention to hold possession thereof to himself, is sufficient to maintain the action. Prendergrast v. Graverman, 166 Mo.App. 33; Robinson v. Ramsey, 190 Mo.App. 206; Milem v Freeman, 136 Mo.App. 106; Bradley v. West, 60 Mo. 59; McCartney's Adm'rx et al. v. Alderson, et al., 45 Mo. 35; Catchcart v. Walter, 14 Mo. 18; Dennison v. Smith, 26 Mo. 487; Powell et al. v. Davis et al., 54 Mo. 315; Willis v. Stevens, 24 Mo.App. 494. (2) If plaintiff was wrongfully in possession of the property in dispute and defendant entitled to the possession thereof, then defendant should have brought its legal proceedings against plaintiff for the possession of said property, and should not have attempted to adjudge its own rights. The law does not permit a party to redress his grievance with his own hand, and if he does so redress it, the law will undo the work, and place the parties as they were before the entry. Stewart v. Miles, 105 Mo.App. 242; Kravet v. Meyer, 24 Mo. 107; Robinson v. Walker, Ex'r of Walker, 50 Mo. 19; Sitton v. Sapp, 62 Mo.App. 197; Craig v. Donnely, 28 Mo.App. 342; Redman v. Perkins, 122 Mo.App. 168. (3) Actual, peaceable possession was all that was required upon the part of plaintiff in order to enable him to maintain this suit. The right of his possession is not and cannot be a matter in issue. Compton v. Baker, 34 Mo.App. 138; Meriweather v. Howe, 48 Mo.App. 148; Van Enman et al. v. Alex H. Walker, et al., 47 Mo. 169. (4) There need have been no intentional wrong on the part of defendant to permit plaintiff to recover in this action. The whole question is, was plaintiff in the peaceable possession of the property in question, and did defendant intrude upon that possession? Stark v. Martin, 126 Mo.App. 571. (5) Constructive possession on the part of the city by reason of having title to the property, even should it be admitted that it had title, was not sufficient to give it the right to enter upon the possession of plaintiff, even though his possession be wrongful. Walser v. Graham, 60 Mo.App. 323. (6) Plaintiff Underwood having purchased the property under foreclosure sale was not a trespasser, even should it be admitted he failed to get title at the sale. Dunnington v. Hudson, 217 Mo. 93. (7) Under the law of Missouri a trespasser when in the actual, peaceable possession of property, can maintain forcible entry and detainer proceedings against the rightful owner who has wrongfully entered in and ousted him of his possession. Rochester v. Gate City Mining Co., 86 Mo.App. 447. (8) Under the law of Missouri the party forcibly entering upon the possession of another and dispossessing him is liable for all damages occasioned thereby, and in cases less aggravating than the case at bar punitive damages have been allowed. Certainly defendant has no right to complain at the small damages allowed against it in this case. Wamsganz v. Wolff, 86 Mo.App. 205; Leahy v. Lubman, 67 Mo.App. 191; Eads v. Wooldridge, 27 Mo. 251; Silvey v. Summers et al., 61 Mo. 253.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J.

This is an action for forcible entry and detainer. Plaintiff had judgment before a justice of the peace of Pemiscot county, and upon defendant's appeal to the circuit court of that county, there was a verdict and judgment for defendant, and plaintiff thereupon appealed to this court. Under the provisions of section 3939, Revised Statutes 1909, the appeal was by this court transferred to the Springfield Court of Appeals, which court rendered a decision in the case. [See Underwood v. Caruthersville, 146 Mo.App. 288, 129 S.W. 1076.] Thereafter the supreme court held the above mentioned section to be unconstitutional and void (see Dunham v. Nixon, 232 Mo. 98, 133 S.W. 336), and the cause was thereupon retransferred to this court, where, under the ruling of the Supreme Court, the jurisdiction of the appeal continued to reside. Thereafter this court adopted the opinion of the Springfield Court of Appeals, and accordingly reversed the judgment and remanded the cause. [See Underwood v. Caruthersville, 160 Mo.App. 619, 140 S.W. 1199.] It appears that, after the cause had been remanded to the circuit court of Pemiscot county, a change of venue was taken by plaintiff, and the case was sent to the circuit court of Dunklin county, where a trial resulted in a verdict and judgment for defendant; but the court set the judgment aside for error thought to have been committed at the trial. Thereupon a change of venue was granted the defendant, and the cause sent to the circuit court of St. Genevieve county, where a trial before the court and a jury resulted in a verdict and judgment for plaintiff. Defendant appealed to this court where the case was reversed and remanded. A retrial of the case in the circuit court of St. Genevieve county resulted in a verdict and judgment for plaintiff, from which judgment the defendant appealed.

Counsel for respondent, defendant below, admits in his statement and brief that "there is but little difference in the record as to the substantial testimony given at each trial of the case." We have carefully examined the statement of facts as set forth in the opinion on the last appeal and find same an excellent, full and fair exposition of all the needed facts in the case. We find no reason to change any part thereof. Said statement is as follows:

"The property in question consists of a strip of land thirty five feet in length and twelve feet in width, in the city of Caruthersville. It appears that the defendant had for many years been in possession of a lot in the city of Caruthersville upon which stood the city's public buildings, fronting approximately south on George street, as we understand the small plat before us. Plaintiff claimed to be the owner and in possession of a lot lying immediately north and in the rear of defendant's said lot. The strip of ground in controversy lies along the dividing line between these two lots. Defendant's city hall and jail stood upon its lot, and there was a small building in the rear thereof, referred to as the engine house, used for storing the city's fire apparatus, which occupied a strip of land sixteen feet in length and eight feet wide, being a part of the total strip in controversy. Plaintiff used his lot for the purposes of storing coal, in which he dealt, and had thereupon wagon scales with which he did public weighing. His testimony tends to show that he purchased his lot in 1904, and that thereafter he made some use of a strip of the land here in controversy, i. e., that portion thereof not covered by defendant's engine house above mentioned, by placing coal thereupon from time to time, and that in the course of his business he, and the members of the public dealing with him, drove over a portion of it. And it appeared that plaintiff constructed a "bulkhead" to hold his coal in place, which stood on or about the south line of this strip in dispute, but which appears to have extended but thirteen feet along this line. Later this "bulkhead" fell down, and it seems to have disappeared altogether long prior to the alleged entry of defendant complained of. In the latter part of 1906 and early in the following year, the defendant removed its buildings from its lot, for the purpose of erecting a new and larger city hall building. Shortly after the removal of the engine house, plaintiff, in March, 1907, erected a fence upon what he claimed to be the line of his lot, inclosing with his land the strip in controversy. This fence was erected at night or early one morning, when defendant had begun, or was about to begin, excavating for the foundation of the new city hall. Defendant's agents tore away this fence and took possession of the strip of ground in controversy for the city's purposes. At this time plaintiff had, according to his testimony, from five to seven tons of coal upon the ground formerly occupied by the engine house, and this defendant removed. Litigation followed with which we are not here concerned: though it may be stated incidentally, that the record discloses that plaintiff was restrained from replacing the fence, and that defendant proceeded to and did build its city hall upon this strip at or near the northern line thereof."

1. One assignment of error pertains to a certain remark made by plaintiff's counsel in his closing argument to the jury, respecting the action of this court in reversing the judgment on the last appeal. The language used is unworthy of space herein and will not be set out. It is sufficient to say that the remark was highly improper and the making thereof reprehensible. The trial court mildly reprimanded plaintiff's counsel but the latter did not avail himself of the opportunity to make proper apology. In the view which we take of the case it is unnecessary to say more regarding this assignment of error and we consequently pass to the merits.

2. ALLEN, J., when this case was here on the former appeal (184 S.W. 486) was of the opinion that the plaintiff had made no case for the jury and that...