Waverly Timber & Iron Company v. St. Louis Cooperage Company
| Decision Date | 29 November 1892 |
| Parties | The Waverly Timber & Iron Company, Appellant, v. The St. Louis Cooperage Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Reversed and remanded.
Frank Dawson & Garvin for appellant.
(1) Under the code, it is reversible error for the court to refuse to allow a plaintiff at the trial to amend a good petition in conformity with the evidence adduced. Carr v Moss, 87 Mo. 447; Weber v. City of Hannibal, 83 Mo. 262; Gilmore v. Dawson, 64 Mo. 311; McMurry v. Martin, 26 Mo.App. 438; 1 McQuillan on Pleading & Practice, sec. 410. (2) First. No element of wilfulness or negligence is necessary to charge the defendant for the actual loss resulting from his conversion; he may have committed the trespass under a mistaken view of his legal rights; nevertheless he has intermeddled with plaintiff's property and disposed of it, and it is no answer that he acted under authority from another who himself had no authority to dispose of it. Pearson v. Inlow, 20 Mo. 322; Koch v. Branch, 44 Mo. 542; Warnick v. Baker, 42 Mo.App. 442; Bank v. Tremholm, 12 Heisk. 520; S. & R. Co. v. Taber, 13 Col. 56; Dickson v. Elevator Co., 44 Mo.App. 504; Hamlin v. Caruthers, 19 Mo.App. 571; Herdic v. Young, 55 Pa. St. 176; Hyde v. Noble, 13 N.H. 499; Morrill v. Moulton, 40 Vt. 242; Spraights v. Hawley, 39 N.Y. 441. Second. Parol evidence is admissible to identify persons and things mentioned in a deed introduced in evidence so as to satisfy and explain the description therein, even where the deed is perfectly intelligible on its face, and also to show claim of title and occupancy under such deeds. Skinker v. Haagsma, 99 Mo. 208; McPike v. Allman, 53 Mo. 561; Webster v. Blount, 39 Mo. 502. (3) Plaintiff was entitled to go to the jury on the case made. Moody v. Deutsch, 85 Mo. 243. First. In the absence of actual adverse possession, either the legal title to unoccupied land, or occupancy of a part of a contiguous tract under color of title to the whole, invests the owner with full and complete rights and remedies against trespassers. Renshaw v. Lloyd, 50 Mo. 369; Hammontree v. Huber, 39 Mo.App. 329; Crispen v. Hannavan, 50 Mo. 536; Rannels v. Rannels, 52 Mo. 109; Harbinson v. School District, 89 Mo. 184; Bartlett v. Kauder, 97 Mo. 356; Hickman v. Link, 97 Mo. 483; Turner v. Hall, 60 Mo. 271; McElhinney v. Kraus, 10 Mo.App. 225; 3 Washburn on Real Property [5 Ed.] p. 138; Riley v. Water Works, 11 Cush. 11; Shermerhorn v. Buell, 4 Denio, 422; Polk v. Henderson, 9 Yerg. 310. Second. A mere entry and direction to cut trees standing upon such premises by one owning adjacent ground, whether under mistake as to true location of boundary line or otherwise, does not constitute an adverse possession against the true owner, no matter how often such trespass may be repeated. Bailey v. Massey, 2 Swan, 169; Wright v. Guier, 9 Watts, 172; Skinker v. Haagsma, 99 Mo. 215; Watts v. Loomis, 81 Mo. 239. Third. When timber is thus severed from the land the timber becomes personal property, but the title to it remains unaffected in the owner of the land. Turley v. Tucker, 6 Mo. 583; Baker v. Campbell, 32 Mo.App. 530; Johnson v. Elwood, 53 N.Y. 431; Wells on Replevin, secs. 82, 89; Riley v. Water-Power Co., 11 Cush. 11; Moody v. Whitney, 34 Me. 563. Fourth. Such owner may waive the trespass and recover in trover for the conversion against whoever cut or carried away this timber, or caused it to be cut or carried away without his consent. 1 Salk. 10, note a; Wright v. Guier, 9 Watts, 173; Wadleigh v. Janorin, 41 N.H. 520; Cooper v. Chitty, 1 Burr. 31; Nelson v. Burt, 15 Mass. 203; Sanderson v. Haverstick, 8 Barr. (Pa.) 294; Riddle v. Driver, 12 Ala. 590; Cobb v. Griffith & Adams Co., 87 Mo. 90; Railroad v. Mahoney, 42 Mo. 467. Fifth. A purchaser of property wrongfully taken from plaintiff is answerable to him in trover for a conversion. Riley v. Water-Power Co., 11 Cush. 11; Bank v. Tremholm, 12 Heisk. 520; Moody v. Whitney, 34 Me. 563; S. & R. Co. v. Taber, 13 Col. 41; Dickson v. Elevator Co., 44 Mo.App. 504; Koch v. Branchs, 44 Mo. 542; Warnick v. Baker, 42 Mo. 442; Hamlin v. Caruthers, 19 Mo.App. 571; Williams v. Wall, 60 Mo. 318; Allen v. McMonagle, 77 Mo. 481; Ireland v. Horseman, 65 Mo. 512.
Kehr & Tittman and F. Wislizenus for respondent.
(1) In a personal action based on the cutting and removing of plaintiff's timber, possession of the land wherein the timber was cut, either actual or constructive, must be shown as fully as if the suit were for trespass on the land. Deland v. Vanstone, 26 Mo.App. 297; Zeitinger v. Lumber Co., 45 Mo.App. 114; Rannels v. Rannels, 52 Mo. 108; Brown v. Carter, 52 Mo. 46; Lindenbower v. Bentley, 86 Mo. 515. (2) In this case plaintiff failed to prove possession of any part of the tract claimed by it. Inspection of the ground and employment of agents to look after it do not constitute possession. Nor would cutting timber (of which there was no evidence). Green v. Harmon, 4 Dev. 158; Bailey v. Massey, 2 Swan, 168; Morris v. Hayes, 2 Jones, 93; Loftin v. Cobb, 1 Jones, 406; Grant v. Winborne, 2 Hay. 56; Musick v. Barney, 49 Mo. 458; Norfleet v. Hutchins, 60 Mo. 597; Pike v. Robertson, 79 Mo. 615. (3) To prove its possession of the whole tract under color of title, it was necessary for plaintiff to fix the boundaries laid down in its deed by competent evidence, and prove that the alleged trespass was committed within the bounds thus ascertained. This plaintiff failed to do. Parker v. Wallis, 60 Md. 15; Blumenthal v. Roll, 24 Mo. 113; Schultz v. Lindell, 30 Mo. 321; Robinson v. White, 42 Me. 209; Chapman v. Brawner, 2 Har. & J. 366; Carrol v. Smith, 4 Har. & J. 128. (4) Agency cannot be proved through declarations of the agent when not made by him as witness in the case. Peck v. Ritchey, 66 Mo. 114; Carsons v. Cummings, 69 Mo. 329; Anderson v. Volmer, 83 Mo. 406; Mitchem v. Dunlap, 98 Mo. 418; Diel v. Railroad, 37 Mo.App. 454; Crothers v. Acock, 43 Mo. 320; Golson v. Ebert, 52 Mo. 260. (5) The appellate court will interfere with the discretion of a trial court in ruling on an application to amend only in case of gross abuse. Cadwell v. McKee, 8 Mo. 334; Machine Co. v. Philbrick, 70 Mo. 648; Pomeroy's Adm'r v. Brown, 19 Mo. 303; Chauvin v. Lowres, 23 Mo. 227; Ellsworth v. Barton, 67 Mo. 622; Ferguson v. Railroad, 35 Mo. 452; Green v. Gallagher, 35 Mo. 226; Dozier v. Germans, 30 Mo. 216. (6) Plaintiff cannot by amendment change the nature of his action, nor can he add an independent action by amendment. Fields v. Maloney, 78 Mo. 172; Parker v. Rhodes, 79 Mo. 92; Scovill v. Glasner, 79 Mo. 452; Lumpkin v. Collier, 69 Mo. 170. (7) It is no longer the law that a nonsuit must be refused, if there is the faintest spark of evidence in the direct case. Landis v. Hamilton, 77 Mo. 554; Powell v. Railroad, 76 Mo. 83; Myers v. Houck, 52 N.W. 235.
This is an action for damages, alleged to have been caused by the conversion of certain timber, staves and headings cut and made without consent of plaintiff from certain lands owned by it "lying and situate in civil districts 1 and 11 in Humphreys county, in the state of Tennessee, and more particularly from that portion of the plaintiff's said tract of land located north of Turkey creek, south of White Oak creek, west of the west boundary line of what is known as the John Brown tract, and east of what is known as the River road, which road, at this place, runs parallel with and east of the Tennessee river in said county of Humphreys and state of Tennessee."
The petition is in three counts; the first alleges a conversion between October 15, 1885, and January 1, 1887, to the amount of $ 1,500; the second, a like conversion during the year 1887 to plaintiff's damage, and the third, a like conversion in June and July, 1888, and throughout 1888, until September 14, 1889 (when this action was commenced) amounting to $ 2,800 in damages.
The answer was a general denial.
The cause was tried November 18, 1890.
On the calling of the cause for trial, November 18, 1890, plaintiff asked leave of court to amend its petition by inserting after the words "east of Tennessee river," above, the following words: in order to conform the pleadings with the proof in the depositions on file. The motion to amend was overruled by the court and exceptions taken by plaintiff.
Plaintiff offered in evidence and read two deeds; one from Joseph Frank and wife and August Richards and wife to the Waverly Timber & Iron Company, of date February 2, 1888, conveying by metes and bounds seventeen thousand, three hundred and fifty-three and one-half acres in Humphreys county, Tennessee, and one from T. U. Harris and wife to Frank and Richards, both duly recorded. It is admitted that the above deeds cover and embrace the land in the petition.
Among other witnesses J. A. Summers testified in a deposition filed October 13, 1890, that he cut one hundred and two white oak trees on this land south of Turkey creek. He cut this timber for the defendant, and shipped it to defendant at St. Louis. Mrs. Duffel claimed the timber and sold it to him. He showed McCullom the trees he cut. McCullom testified these trees were cut on plaintiff's land. The evidence tended to show this was the larger part of the damage done plaintiff.
Plaintiff complains that the court refused to permit it to amend its petition as requested. We think the court erred in not permitting this amendment. Its effect was to make the petition more specific. The deposition was on file, and the witness had been cross-examiner by defendant....
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