Campbell v. King

1. Trespass: spoliation: burden devolving upon trespasser. A person admitting an act of spoliation, it devolves on him to show that it was not committed against the party complaining, and failing to do so, a verdict may properly be directed for the plaintiff. 2. -: PRACTICE : SEVERAL TRESPASSES AND SEPARATE VERDICTS. The rule that where there are several counts in the petition, and several trespasses, there should be separate verdicts, applies only where several distinct causes of action exist and are stated in separate counts. If there is but one cause of action, although set out in several counts to meet any possible state of facts developed in the evidence, if there is one good count in the petition a general verdict will be upheld.

Appeal from Lafayette Circuit Court. — Hon. John P. Strother, Judge. Statement of case by the court. This is an action in trespass, instituted before a. justice of the peace. The statement contained several counts. The gravamen of the complaint is, that defendant cut down and destroyed a wire fence, the property of plaintiff in his premises. Some of the counts were, under the statute, for double damages, etc., and some were for a common-law trespass. The evidence developed about the following state of facts : The land on which the fence stood belonged to one Henry Campbell, Sr., who died intestate, leaving the plaintiff, with many other children and grandchildren as his heirs at law. The defendant married a daughter of the intestate. At the time of his death there was a small graveyard on the forty-acre tract in question, which was used as a family burying-ground; and some neighbors were permitted to bury members of their families therein. In 1878, the heirs built around these graves a plank fence, embracing about one-half acre of land. The plaintiff seems to have held the key to the gate which locked in this lot; though it was accessible to all the heirs when they wished to go into the grounds. The graves were in the northeast corner of this lot. On the south side of this lot ran a county public road. The road inclined in its direction from the northwest to the southeast. Its relation to the graveyard lot is shown by the following rough diagram: From which it will be seen that the southwest corner of the fence inclosing the graveyard touched at this road ; and from that point the road bore to the southeast, so as to leave a space between the fence, to the south, and the road of about one-seventh of an acre. The gate entrance to the graveyard was on the south side and near the middle of the south string of fence. After this the heirs brought a partition suit for the division of the lands of the estate, embracing a large amount of land, including the forty acres on which the graveyard was located. By oral agreement between the heirs it was concluded to leave one acre instead of the one-half acre for a graveyard. The forty acres aforesaid in the decree of partition was allotted to plaintiff ; and in the decree was the following reservation : “Except the graveyard, consisting of one acre of land situated on” said forty acres. Afterwards the plaintiff built a fence on the south part of this forty-acre tract, composed of posts and wire. He connected the fence with the graveyard at the southwest corner, and at the southeast corner, leaving the space of one-seventh of an acre on the south side open to the road. The defendant 'did not consent to this action of plaintiff; and cut down the fence at the southwest corner for about twenty-one feet, and at the southeast corner for about seventeen feet. It should be further stated that about the time plaintiff was preparing to so build his fence, by delivering on the ground the posts and wire therefor, the defendant, with the consent of some of the heirs, had the county surveyor lay off one acre including the graveyard. He was directed to lay it off in a square. The surveyor testified that he could not locate the one acre from anything contained in the language of the reservation in the judgment of partition. He run the one acre so as to include the half-acre fenced in, making it the center, as nearly as possible, of the acre. But in order to do this he had to put the southwest corner of the acre about the middle of the public road, so as to include the one-seventh of an acre lying south of the graveyard fence. He had no authority for this survey, other than the request of defendant, and the concurrence of some of the heirs. The instructions given and refused are numerous ; but in view of the opinion of the court, it is not necessary to set them out. The jury returned a verdict for the.plaintiff, assessing his damages at $1.54. Defendant prosecutes this appeal.. (1) Defendant was entitled to and held the possession of his wife’s interest in the land in controversy. Bledsoe v. Simms, 53 Mo. 305. And, as such, was tenant in common with the other heirs. This being so, this action in trespass does not lie. 41 Kent’s Com. ( 6 Ed.) 369 ; Gibson v. Vaughn, 2 Bailey (S. C.) 389; War-field v. Lindell, 38 Mo. 561 ; Dubois v. Campan, 28 Mich. 316. The exceptions to this rule are, where the alleged trespasser ousts his co-tenants, and assumes exclusive possession of the common property; and when he destroys the common property. This case is not within the exceptions. (2) The court erred in refusing defendant’s instructions. Appellant’s second instruction, that the acre should, as a matter of law, be laid off in a square, was correct, and should have been given. Under our system of surveying in Missouri, as adopted by the United States government, and by which our lands were obtained and are still sold in the absence of other more specific boundaries, everything goes by square measurement. Our townships, sections, quarter-sections and sixteenth-sections are all squares. So “an acre” is a quantity of square measurement, and without further direction should be so laid off, and such description would not of itself be void. The graveyard itself fixes the location, and the words “one acre ” the boundaries and measurements. Similar conclusions have been reached by the courts concerning even larger bodies of land. Evans v. Green, 21 Mo. 170 ; Walsh1 s Lessee v. Bingar, 2 Ohio, 327 ; Cunningham1 s Lessee v. Harper, Wright (Ohio), 366 ; Hays1 Lessee v. Storss^'W light (Ohio), 711. (3) It was assumed that the reservation of the graveyard was void for uncertainty. While this, at the most, might have been the case, had there been no graveyard actually occupied as such, it was not so in this 'instance, when the graveyard had an actual existence and could be found without reference to boundaries. The ambiguity that makes a. deed void is a patent one ; the ambiguity in this case, if any, is latent. Hardy v. Mathews, 38 Mo. 121 ; Shewalter v. Pirner, 55 Mo. 218, and cases cited ; Dow v. Jewell, 18 N. TI. 340. (4) To say the least, the action of appellant with one of the principal heirs, with the sanction and approval of most of the others (those not acting being mainly non-resident), amounts to an election, which they were entitled to make, and the rights of respondent being subordinate to the rights of the heirs in the graveyard — the deed to him excepting the graveyard — and respondent standing in the place of Henry Campbell, Sr., and, therefore, not entitled to a voice in this election, the grant and election under it of the graveyard will be construed most strongly against Henry Campbell, Sr., and the respondent, as his grantee, of the remaining land and in favor of his heirs. And if there is any uncertainty in the description, then the heirs have the right by election to make it certain. Armstrong r>. Mudd, 10 B. Mon. 144; Jackson v. Hudson, 3 Johns. 375 ; Jackson t>. Blodgett, 16 Johns. 172 ; Rung v. Stoneberger, 2 Watts (Penn.) 23; Pollard v. Maddox, 28 Ala. 321. (5) The complaint contains three distinct counts, and there were two distinct trespasses proven, and yet the verdict of the jury was a general one. This was error, and was saved specifically in the motion in arrest of judgment. Bricker v. Railroad, 83 Mo. 391. (6) The instructions given for plaintiff, being directly in contravention of those asked by defendant, and to the principles herein contended for, are wrong, and should have been refused. (1) The action of trespass will lie between .tenants in common when there is exclusion from the enjoyment of the common property, or where there is a destruction in part or in whole of the subject-matter of the tenancy ; but the testimony in this case does not- show that the trespass was committed on the graveyard acre, or on any tenancy in common, and the doctrine respecting trespass between tenants in common, as laid down in the cases cited under this point by appellant, has no application here. (2) The reservation of the one acre for a graveyard in the deed and decree in evidence was void for uncertainty, but even if this were not so there is no evidence in the case showing the trespass to have been committed on the one acre reserved as a graveyard, and no evidence offered by appellant to explain any latent ambiguity in the deed, or to show where the parties intended to locate the acre. If the location and boundaries of the one-acre graveyard were.never fixed and determined by Henry Campbell, deceased, in his lifetime, by his deed or will, or by his heirs after his death, then such location cannot be had and made in this collateral proceeding, to which all the heirs of said decedent are not parties. Appellant’s instructions were properly refused. Campbell v. Johnson, 44 Mo. 247;. Bell v. Dawson, 32 Mo. 79 ; Holme v. Strautman, 35 Mo. 293; Alexander v. Hieox, 34 Mo. 496 ; Nelson v. BrodhacJc, 44 Mo. 603 ; Shultz v. Lindell, 30 Mo. 310, 312, 321. Opinion of surveyor is inadmissible. Blumenthal v. Boll, 24 Mo. 113 ; Clemens v. Bannells, 34 Mo. 579. (3) An acre may be a quantity of square measurement, and should be so laid off where practicable, but it is not practicable to lay out a graveyard in the public highway, nor is it practicable or legal, under the facts in this case, to lay off this acre except to begin at the southwest corner of the present inclosure around the graveyard, fixed there in 1878, and lay the acre off north of the county road, whether the acre is to be square or otherwise, and Mr. Satterfield’s decrees, sitting as a high court of chancery on the aforesaid graveyard, are coram non judice. Blumenthal «. Boll, 24 Mo. 113. (4) Where there has been one “election ” and one location as to boundary, by the consent and approval of all the heirs, including the defendant, and such location ratified by five years’user there cannot be a second election by two out of the thirty heirs named in the decree of partition. This case originated before a justice of the. peace, where the rule that the jury must make a finding on all the issues does not apply, and the practice act does not apply to the trial of a cause appealed from a justice’s court. Loomis v. Railroad, 17 Mo. 341 ; Sontier v. Kellerman, 18 Mo. 509; B. S., secs. 2850, 3052. Besides, there is only one cause of action and one trespass here. Cases su/pra; Allen v. Railroad, 84 Mo. 653; Dermody v. Steamboat, 28 Mo. 284. (5) There was no title to real estate put in issue in this case. (1) The appellant’s answer admits title in the respondent to more land than he claimed, but the dispute is as to where the trespass was committed ; and (2) the appellant waived his right to have the case certified to the circuit court by subsequently appearing in another justice’s court and trying the case on its merits, and then appealing therefrom. 2 Waterman-on Trespass, secs. 945, 946, 947, 1040; Dubois v. Beaver, 25 N. Y. 123, '128 ; Ervin v. Olmstead, 7 Co wen, 229; McCormick v. Monroe, 1 Jones L. [N. C.] 13 ; Marsh v. Berry, 7 Cowen, 344 ; Dermody v. Steamboat, 28 Mo. 284. (6) The judgment below ought to be affirmed on account of the trifling amount of the judgment appealed from.