BLAND, P. J.
(after stating the facts). — 1. Defendant contends that the court erred in admitting evidence in respect to the value of the sand, and in instructing the jury that the measure of damages was the value of the sand removed from the premises by the defendant. The statute, section 4572, R. S. 1899, on which the action is founded, provides: “If any person shall cut down, •injure or destroy or carry away any tree. ... or carry away any stones, ore or minerals, gravel, clay or mould or any ice or other substance or material being a part of the realty......being on land not his own. ... . the person so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs.” The statute fixed the damages at treble the value of the thing removed from plaintiffs’ land by the trespass. If the defendant was guilty of a willful trespass in entering plaintiffs’ land, though the thing removed was sand, the defendant is liable for treble the value of the sand removed. [406]*406Mueller v. Railroad, 31 Mo. 262; Soulard v. St. Louis, 36 Mo. l. c. 553-554; Henry v. Lowe, 73 Mo. 96; Flynt v. Railway, 73 Mo. App. 94. The ordinary rule for measuring the damages to land caused by the digging up and removal of a part of the soil, which is the cost of replacing the soil removed or the difference in the value of the. land before and after the removal, cannot be applied to actions brought on the statute for the treble damages. The cases of Bungenstock v. Drainage District, 163 Mo. 198, 64 S. W. 149; Bailey v. Gas Fixture Co., 54 Mo. App. 50. and Foncannon v. Kirksville, 88 Mb. App. 279, cited and relied on by the defendant were not brought on the statute, but were common-law actions where the damage sought to be recovered was for the trespass and damage to the freehold.
For the reason railroad companies are authorized by section 1058, R. S. 1899, to enter and take from any land in the neighborhood of their lines of railroad, gravel, stone, wood, water or other material necessary for the construction of their railroads, it is contended by defendant that it is not amenable to the penalty of treble damages, as provided by section 4572, supra. Section 1058 does not give an absolute or unrestricted right to railroad companies to enter upon the land of another for the purpose mentioned. It provides that before making the entry, the railroad company must agree with the owner as to the damages and if it cannot agree with the owner, then it must proceed to have commissioners appointed in the manner provided by the statute to appraise the damages.
Section 4575, chap. 60, R. S. 1899, provides that on the trial of any action brought on section 4572, of the same chapter, “If it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to' have been committed, or that the thing so taken, carried away, injured or destroyed, was his own, the plaintiff in the action or prosecution shall receive single damages only, with costs.”
[407]*407In Lindell v. Eailroad, Co., 25 Mo. 550, the suit was brouglit on section 1 (substantially tbe same as section 4572, supra) of an act to prevent certain trespasses approved February 10, 1845. The facts were that the defendant entered upon the land of the plaintiff and commenced cutting timber therefrom for the construction of its road and then applied to a justice- of the peace for the appointment of commissioners to appraise the damages, who upon their own view, made after the timber had been cut, and portions of it removed, appraised the damages at $1100 and made out their .report in writing. On this state of facts the court said it was of the opinion that the defendant had probable cause to believe that the timber taken was its’own and under the fourth section (the same as section 4575, supra) plaintiff was entitled to single damages only. The Hannibal & St. Joseph Railroad Company, by section 2, of the amended act incorporating it (Laws 1853, p. 321)' was authorized to take from any land in the neighborhood of its line of railroad, earth, gravel, stone, wood, water or other material necessary for the construction and operation of its road, paying, if the owner of the land and the company could agree, the damages, if they could not agree, the section provides for the appointment of commissioners by a justice of the peace to appraise the damages upon their own view of the grounds and of the wood, earth, stone or gravel which had been taken thereform. This section authorized the Hannibal & St. Joseph Eailroad Company to enter the land of another for the purposes mentioned, in advance of any agreement with the owner of the land or the appointment and report of appraisers, if no agreement could be made with the owner. Leary v. Railroad, 38 Mo. 485.
The statute (1058, supra) 'following the requirements of section 21, article 2, of the Constitution, provides that the damages must be ascertained by agreement with the owner or by appraisement by commissioners before the company is authorized to enter upon the [408]*408land of another for the purpose of removing material therefrom to be used in the construction of its road. The ascertainment of the damages is a prerequisite to its right to make the entry and if it makes the entry and removed material without agreement of the owner or without having the damages appraised by commissioners, it would he guilty of a willful trespass and he liable for treble damages as provided by section 4572, supra. Ring v. Bridge Co., 57 Mo. 496.
G. T. Cos swore that he agreed to let defendant have two acres of land in a narrow strip, running across his land (forty acres) adjoining the railroad company’s right of way, for twenty dollars per acre and in consideration that the railroad company would erect and maintain permanently a depot at this place. Defendant’s evidence is that G. T. Cox agreed to let the defendant have all the sand it wanted from his premises at twenty dollars per acre and that it took the sand relying on this contract; that nothing was said about the depot. There is a wide discrepancy as to the terms of the contract, but none in respect to the fact that a contract of some kind was made to let defendant take sand off of plaintiff’s premises. If the defendant had probable cause to believe that it was authorized, under the contract, to enter the premises of plaintiffs and take the sand, it was not a willful trespasser and is not liable for treble damages, but for single damages only. Plaintiffs are joint owners of the premises hut it does not appear from the evidence that Mrs. Cox was a party to the contract whatever it may have been. It may be said that G. T. Cox, her husband,,- was her authorized agent to sell the sand to the defendant, if so it ought to he shown as it cannot be presumed. His agency may be shown by direct evidence or from such facts and circumstances as will warrant a reasonable inference that he was authorized to act for his wife in a sale of the sand. If G. T. Cox’s contract was as contended for by defendant and he had authority from his wife to make it, defendant had probable cause [409]*409to believe it had a right to enter plaintffs’ premises and take the sand and is liable for single damages only, and plaintiffs could not, by subsequent notice to defendant to get off the premises and stop taking the sand, convert what was originally an innocent trespass into a willful one, unless, as plaintiffs’ evidence tends to show, sand was taken from a portion of the premises not included or intended to' be included in the contract.
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BLAND, P. J.
(after stating the facts). — 1. Defendant contends that the court erred in admitting evidence in respect to the value of the sand, and in instructing the jury that the measure of damages was the value of the sand removed from the premises by the defendant. The statute, section 4572, R. S. 1899, on which the action is founded, provides: “If any person shall cut down, •injure or destroy or carry away any tree. ... or carry away any stones, ore or minerals, gravel, clay or mould or any ice or other substance or material being a part of the realty......being on land not his own. ... . the person so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs.” The statute fixed the damages at treble the value of the thing removed from plaintiffs’ land by the trespass. If the defendant was guilty of a willful trespass in entering plaintiffs’ land, though the thing removed was sand, the defendant is liable for treble the value of the sand removed. [406]*406Mueller v. Railroad, 31 Mo. 262; Soulard v. St. Louis, 36 Mo. l. c. 553-554; Henry v. Lowe, 73 Mo. 96; Flynt v. Railway, 73 Mo. App. 94. The ordinary rule for measuring the damages to land caused by the digging up and removal of a part of the soil, which is the cost of replacing the soil removed or the difference in the value of the. land before and after the removal, cannot be applied to actions brought on the statute for the treble damages. The cases of Bungenstock v. Drainage District, 163 Mo. 198, 64 S. W. 149; Bailey v. Gas Fixture Co., 54 Mo. App. 50. and Foncannon v. Kirksville, 88 Mb. App. 279, cited and relied on by the defendant were not brought on the statute, but were common-law actions where the damage sought to be recovered was for the trespass and damage to the freehold.
For the reason railroad companies are authorized by section 1058, R. S. 1899, to enter and take from any land in the neighborhood of their lines of railroad, gravel, stone, wood, water or other material necessary for the construction of their railroads, it is contended by defendant that it is not amenable to the penalty of treble damages, as provided by section 4572, supra. Section 1058 does not give an absolute or unrestricted right to railroad companies to enter upon the land of another for the purpose mentioned. It provides that before making the entry, the railroad company must agree with the owner as to the damages and if it cannot agree with the owner, then it must proceed to have commissioners appointed in the manner provided by the statute to appraise the damages.
Section 4575, chap. 60, R. S. 1899, provides that on the trial of any action brought on section 4572, of the same chapter, “If it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to' have been committed, or that the thing so taken, carried away, injured or destroyed, was his own, the plaintiff in the action or prosecution shall receive single damages only, with costs.”
[407]*407In Lindell v. Eailroad, Co., 25 Mo. 550, the suit was brouglit on section 1 (substantially tbe same as section 4572, supra) of an act to prevent certain trespasses approved February 10, 1845. The facts were that the defendant entered upon the land of the plaintiff and commenced cutting timber therefrom for the construction of its road and then applied to a justice- of the peace for the appointment of commissioners to appraise the damages, who upon their own view, made after the timber had been cut, and portions of it removed, appraised the damages at $1100 and made out their .report in writing. On this state of facts the court said it was of the opinion that the defendant had probable cause to believe that the timber taken was its’own and under the fourth section (the same as section 4575, supra) plaintiff was entitled to single damages only. The Hannibal & St. Joseph Railroad Company, by section 2, of the amended act incorporating it (Laws 1853, p. 321)' was authorized to take from any land in the neighborhood of its line of railroad, earth, gravel, stone, wood, water or other material necessary for the construction and operation of its road, paying, if the owner of the land and the company could agree, the damages, if they could not agree, the section provides for the appointment of commissioners by a justice of the peace to appraise the damages upon their own view of the grounds and of the wood, earth, stone or gravel which had been taken thereform. This section authorized the Hannibal & St. Joseph Eailroad Company to enter the land of another for the purposes mentioned, in advance of any agreement with the owner of the land or the appointment and report of appraisers, if no agreement could be made with the owner. Leary v. Railroad, 38 Mo. 485.
The statute (1058, supra) 'following the requirements of section 21, article 2, of the Constitution, provides that the damages must be ascertained by agreement with the owner or by appraisement by commissioners before the company is authorized to enter upon the [408]*408land of another for the purpose of removing material therefrom to be used in the construction of its road. The ascertainment of the damages is a prerequisite to its right to make the entry and if it makes the entry and removed material without agreement of the owner or without having the damages appraised by commissioners, it would he guilty of a willful trespass and he liable for treble damages as provided by section 4572, supra. Ring v. Bridge Co., 57 Mo. 496.
G. T. Cos swore that he agreed to let defendant have two acres of land in a narrow strip, running across his land (forty acres) adjoining the railroad company’s right of way, for twenty dollars per acre and in consideration that the railroad company would erect and maintain permanently a depot at this place. Defendant’s evidence is that G. T. Cox agreed to let the defendant have all the sand it wanted from his premises at twenty dollars per acre and that it took the sand relying on this contract; that nothing was said about the depot. There is a wide discrepancy as to the terms of the contract, but none in respect to the fact that a contract of some kind was made to let defendant take sand off of plaintiff’s premises. If the defendant had probable cause to believe that it was authorized, under the contract, to enter the premises of plaintiffs and take the sand, it was not a willful trespasser and is not liable for treble damages, but for single damages only. Plaintiffs are joint owners of the premises hut it does not appear from the evidence that Mrs. Cox was a party to the contract whatever it may have been. It may be said that G. T. Cox, her husband,,- was her authorized agent to sell the sand to the defendant, if so it ought to he shown as it cannot be presumed. His agency may be shown by direct evidence or from such facts and circumstances as will warrant a reasonable inference that he was authorized to act for his wife in a sale of the sand. If G. T. Cox’s contract was as contended for by defendant and he had authority from his wife to make it, defendant had probable cause [409]*409to believe it had a right to enter plaintffs’ premises and take the sand and is liable for single damages only, and plaintiffs could not, by subsequent notice to defendant to get off the premises and stop taking the sand, convert what was originally an innocent trespass into a willful one, unless, as plaintiffs’ evidence tends to show, sand was taken from a portion of the premises not included or intended to' be included in the contract.
The second and third instructions given for the plaintiffs should not have been given. Defendant did not set up title for the premises from which the sand was taken but claimed the right to take the sand under a contract to pay twenty dollars per acre for whatever sand it might take from plaintiffs’ land. The contract did not give defendant an interest in the land, nor does the statute (section 1058, supra) contemplate that the railroad company shall acquire an interest in the land. The right given by the statute is a mere privilege to enter upon and remove material from the land in the construction of its road. We cannot preceive that a contract for this privilege need be in writing. If, therefore, the verbal contract was as testified to by Sullivan and Thompson, it gave the defendant right to enter the land and take sand therefrom and it was not in the power of the plaintiffs to revoke the contract by giving the defendant notice to get off the premises.
Defendant’s refused instructions do not correctly state the law. The controlling question in the case is whether or not defendant was a willful trespasser in entering and taking sand from plaintiffs’ land. If G. T. Cox was authorized to act for his wife and made the contract as testified to by Sullivan and Thompson and defendant entered and took the sand under that contract, it was not a trespasser at all and is liable for the contract price of the sand only, and this is so, notwithstanding plaintiffs notified defendant to get off the premises after it had commenced to remove sand therefrom. On the other hand, if the contract was as testified to by Cox, [410]*410then the defendant did not have probable canse to believe it had a right to the sand and is liable for treble damages.
The judgment is reversed and the canse remanded.
All concur.