Underwood v. City of Caruthersville
| Decision Date | 07 July 1910 |
| Citation | 129 S.W. 1076,146 Mo.App. 288 |
| Parties | C. C. UNDERWOOD, Appellant, v. CITY OF CARUTHERSVILLE, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed and cause remanded.
R. D Gardner for respondent.
(1) There was no error in permitting C. B. Faris to testify that the defendant acquired the title to the lot in question from Mrs. Roberts and she from J. D. Tinsley, and the city and its grantors had been in the actual, open, notorious and peaceable possession of the lot in question since 1872. Dyer v. Reitz, 14 Mo.App. 45; Degrew v Prior, 60 Mo. 56; Keen v. Schweigler, 70 Mo.App. 409; Buck v. Endicott, 103 Mo.App. 248; Rochester v. Mining Co., 86 Mo.App. 447; Milem v. Freeman, 136 Mo.App. 117; Willis v. Stevens, 24 Mo.App. 500. (2) There can be no error in the introduction of a certified copy of the judgment from the circuit court of Ste. Genevieve county between the parties as to the strip of land in question, when after the introduction of a certified copy of the motion for a new trial which had not been passed upon by an instruction which, in express terms, withdraws it from the consideration of the jury. Griffith v Hanks, 91 Mo. 109; Durant v. Mining Co., 97 Mo. 62; Gaesher v. College, 76 Mo. 332; Milling Co. v. Transit Co., 112 Mo. 273.
Shepard & Shepard for appellant.
(1) If there was anything tried in the Ste. Genevieve circuit court, it was the question of trespass, and could not be res adjudicata to an action of forcible entry and detainer. Then the question of the manner in which the possession was gained cannot be inquired into in actions of this kind. A trespasser can maintain this action. The only question being, was plaintiff in the peaceable possession of the premises, and did the defendant intrude upon his possession against his will. Craig v. Donnelly, 28 Mo.App. 350; Kings v. Gas Light Co., 34 Mo. 38; Sitton v. Sapp, 62 Mo.App. 203; Willis v. Stevens, 24 Mo.App. 502; Rochester v. Mining Co., 86 Mo.App. 451; Redman v. Perkins, 98 S.W. 1097; Stewart v. Milesk, 105 Mo.App. 242; Bradley v. West, 60 Mo. 59.
This is an action for forcible entry and unlawful detainer for a strip of land twelve feet wide and thirty-five feet long. It appears that the defendant was the owner of a lot in the city of Caruthersville, fronting on George street on which it had its public buildings. That the plaintiff claimed to be the owner and was in possession of a lot immediately back of the city lot and the land in controversy is a strip of ground between these two lots. The controversy arises out of the fact that the parties disagree as to the division line between them. The defendant had, in 1896, or '97, erected a city hall and jail combined upon this lot, and at the rear of this building and constituting a portion of it was what was called a shed, eight feet wide and sixteen feet long, used for the purpose of storing the city's fire apparatus. The plaintiff had occupied the ground of which he had possession for the purpose of a coal yard and public weighing scales, and his testimony tended to show that he had been in possession of all the strip now in controversy except that portion covered by the shed, 8x16, at the rear of defendant's building, for the period of about three years. That in December, 1905, or January, 1906, the defendant had taken down its building and that shortly thereafter plaintiff erected a fence upon what he claimed to be the line of his lot, and that some two months thereafter the defendant, by its agents and servants, tore down this fence, moved some of plaintiff's coal and proceeded to erect a new building which covered the ground formerly occupied by the shed and also some land lying east of the land formerly covered by the shed and covering a portion of the land now in dispute. The defendant's testimony tends to show that they tore down the old building, including the shed mentioned, for the purpose of erecting a new building and that they proceeded with the work of erecting the new building as soon as the weather conditions would permit after removing the old one, and that at the time the fence was erected by the plaintiff defendant had begun work ditching for the foundation of its building, had put stakes and lines upon the land showing where the line of its foundation would be for the entire building, including the portion that was located on the strip now in controversy. Further that plaintiff had erected the fence at a very early hour in the morning and before ordinary working hours; that plaintiff had consulted an attorney about building the fence before it was built and that he had put it there under the advice of counsel, and that plaintiff had stated that he knew defendant was going to build a new building, but he did not intend to permit it to be built upon him if he could help it. Witness D. E. Green testified that he had told Underwood, the plaintiff, that he, Green, had bought this land for the city and that plaintiff would have a lawsuit before he got it. Plaintiff's answer was that he was going to have one--was going to have the property. C. G. Sheppard, the attorney who had been consulted by plaintiff, testified in rebuttal that he represented Mr. Underwood during the time they were having some controversy about this property and he advised plaintiff to build the fence across there to fully designate the line between his property and the city. On cross-examination, he stated that plaintiff had talked to him a number of times about the matter; that he had looked through his title considerable, and that he had told plaintiff just a few days before he built the fence to build it, and that by doing so that would show plainly where his possession was.
It also appears from the testimony that there had been a dispute between plaintiff and defendant for some time over the boundary line between their property.
The case was tried before a jury, verdict returned in favor of defendant and plaintiff has appealed. The errors assigned by plaintiff are that the court erred in permitting counsel for defendant to make certain remarks in his opening statement to the jury; that the court erred in admitting incompetent and irrelevant testimony on the part of defendant; in rejecting competent testimony offered by plaintiff and errors committed in giving and refusing instructions.
1. As to the assignment of error relating to the action of the court in permitting counsel to make improper remarks in his opening statement it is sufficient to say that this alleged error was not preserved by plaintiff in his motion for new trial, and, hence, is not before us for review.
2. The errors complained of in the admission of testimony on the part of defendant relate to the judgment rendered in a former case between the parties in which defendant...
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