Deland v. Vanstone

26 Mo. App. 297, 1887 Mo. App. LEXIS 421

• Court: Missouri Court of Appeals
• Decided: May 17, 1887
• Status: Published

Opinions

Rombauer, J.,

delivered the opinion of the court.

This is an action of trespass de bonis asportatis, if anything. The plaintiff’s petition is as íoIIoavs :

“ The plaintiff states that, on or about the thirtieth day of January, 1883, at the county of Howell, and state of Missouri, the defendants, without leave, and. wrongfully, entered on the southwest quarter of northeast quarter, southeast quarter ofi northwest quarter, and northwest quarter of southeast quarter of section 27, township 27, range 10, west, of which the plaintiff was the owner of the timber standing and growing on said land above described, and there cut timber of the value of ten thousand dollars, and carried it away, by which acts and doings of the defendants the plaintiff was damaged in the sum of ten thousand dollars, for which he asks' judgment.”

The answer is a general denial

Upon the trial the defendants objected to the introduction of any evidence, on the ground that the petition failed to state a cause of action, and at the close of the plaintiff’s case, they demurred to all the evidence, on tbe ground that neither the petition nor the evidence' showed any right of recovery in the plaintiff. Both these objections were overruled and the trial resulted in a judgment for the plaintiff. The defendants, among other things, assign for error the action of the trial court in overruling these objections.

These complaints of the defendants are 'just. The petition fails to state that the plaintiff ever was in possession of either the, land, or the,timber. Possession is essential to maintain such an action. Garner v. McCullough, 48 Mo. 318; Cochran v. Whitesides, 34 Mo. 417, 419; More v. Terry, 61 Mo. 174. It is immaterial in that regard whether the action is trespass or trover, as the only distinction between the two, if any, seems to be that the one is founded on mere possession, and the other on right, as constituted or evidenced by possession, actual or constructive.

The averment of possession being essential, its-omission was a fatal defect, which could not be cured by verdict. Frazer v. Roberts, 32 Mo. 457; Jones Tuller, 38 Mo. 363; Clinton v. Williams, 53 Mo. 141.

But even could it have been thus cured, there was' no evidence to cure it. The evidence of the plaintiff tends to show that, in the year 1882, he bought of Pruitt, one of the defendants, the right to have the pine' timber, standing on the land mentioned in the petition,; nut and removed within a limited time, the contract' ■giving him a license to enter for that purpose. He never entered. Pruitt was in possession of the land when the contract was signed and so remained until January, 1883, when, assuming, rightfully or otherwise, that the plaintiff had failed to comply with his part Of the contract, he sold the timber to the defendant, Yan-stone. Yanstone thereupon entered upon the land, and cut and removed the timber against the plaintiff’s objection.

The evidence fails to show that the plaintiff ever was either in the actual or constructive possession of the land, by himself or agents. His interest was a mere executive interest until entry. Austin v. Coal & Mining Co., 72 Mo. 535, 542. The defendant, Yanstone, from the date of his entry, was in the actual adverse possession of the land, and the right of the plain«tiff to the timber cut from it, or any other of its products after severance, could not be determined in an -action of trover or replevin. Powell v. Smith, 2 Watts, 126; Lehman v. Kellermann, 65 Pa. St. 491. The only remedy, if any the plaintiff has, is against Pruitt for a wrongful violation of his contract.

We have not been able to find any case where timber standing upon land has been treated or considered as personal property. There are cases where the owner of the land, or even the mortgagee not in actual possession, was held entitled to maintain an action of trover for the conversion of property, whicb, prior to its severance, had formed part of the realty, but all these cases, upon examination, will be found to rest on the constructive possession of the owner or mortgagee, as holders of thé' .unquestioned legal title, the possession of the party committing tlie trespass not being adverse. To bold .that tbe action will lie without actual or constructive possession, and is supportable on-tbe right of property, coupled with the right of possession alone, would be, in effect, holding that any plaintiff, entitled to maintain an action of ejectment, may maintain, while out of possession, an action of trover for severance and conversion of part of the freehold, a holding for which we find no warrant in principle or the decided law.

As the plaintiff, upon his own showing, can not maintain the present action against any of the defendants, although he may proceed against Pruitt for damages caused to him by the wrongful violation of the contract in another action, we will not remand the cause.

The judgment is reversed and the cause dismissed.

Lewis, P. J., concurs; Thompson, J.,*dissents.