Young v. Prentice

• Decision Date: 29 March 1904
• Citation: 80 S.W. 10,105 Mo.App. 563
• Parties: YOUNG, Respondent, v. PRENTICE, Appellant
• Court: Missouri Court of Appeals

80 S.W. 10

105 Mo.App. 563

YOUNG, Respondent, v. PRENTICE, Appellant

Court of Appeals of Missouri, St. Louis

March 29, 1904

Appeal from Lewis Circuit Court.--Hon. E. R. McKee, Judge.

Judgment affirmed.

Blair Marchand & Rouse and N.W. Simpson for appellant.

Respondent's complaint filed in this cause before the justice of the peace does not state facts sufficient to constitute a cause of action against appellant. R. S. 1899, sec. 4777, p. 1136; Sheehan & Loler Trans. Co. v. Simms, 28 Mo.App. 64. The court erred in admitting in evidence deed from W. J Burnett to William H. Prentice, and objected to by appellant because it is an attempt to prove title and that is not the question involved, it is the possession.

R. J McNally, Linn Anderson and W. M. Hilbert for respondent.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

This action was begun before a justice of the peace of LaBelle township, Lewis county, and a trial had before a second justice of the same township to whose court a change of venue was awarded, the cause of the action being thus exhibited:

"Plaintiff states that on the day of September, 1902, a large herd of cattle belonging to defendant unlawfully left the enclosure of defendant in said county of Lewis, and entered upon the land of plaintiff, situated on the west part of section four (4), township sixty-one, (61) range eight (8) in said township of La Belle, and destroyed a large quantity of plaintiff's corn being and growing on his said premises, to-wit: one hundred and fifty bushels, and otherwise damaged plaintiff by tramping upon his said ground, all to the damage of plaintiff in the sum of sixty dollars.

"Plaintiff states that at and prior to the unlawful entry of said cattle upon his said premises, the law known as the stock law, declaring it to be unlawful for cattle and other animals to run at large outside the inclosure of the owner and requiring such owner to restrain same from running at large, was in full force, having been previously adopted by a majority of the qualified voters of said county of Lewis.

"Wherefore, plaintiff asks judgment," etc.

An appeal was taken to the circuit court where a jury returned a verdict for plaintiff and defendant has appealed.

At the trial it was agreed that the stock law (Art. 2, chapter 69 R. S. 1899) was in effect in Lewis county at the time of the alleged injury. The testimony revealed that the opposing parties occupied adjoining farms south of the Fabius river, which formed the northern boundary of both, excepting a tract of about nine acres belonging to respondent north of the river. South of the river appellant's grantor and respondent had maintained a division fence and this arrangement was respected after appellant took possession. Appellant had a line of fence extending along the south bank of his farm on his northern boundary through which cattle belonging to him were charged to have escaped and strayed across the river into respondent's nine acres on the north side of the Fabius river, destroying and consuming a large quantity of corn, the property of respondent. Appellant's position was that it devolved upon respondent to keep a water-gap across the Fabius river between his land and that of appellant and by connecting such water-gap on opposite sides of...