Reed v. Price

1. An action, to recover damages for trespass to land can be maintained upon possession alone. Where the possession of the plaintiff is admitted, the defendant may put in issue his possessory right, but to sustain such a defence he must show a superior right in himself or in another under whom he claims. If the defendant be a mere intruder he can not, the plaintiff’s possession being admitted or proven, show a want of title in the plaintiff. 2. Where the plaintiff, in an action for trespass to land, claims in his petition ownership and possession, and the possession is admitted or proven, the defendant, if he be a mere intruder, can not be permitted to introduce evidence to show a want of title in the plaintiff in mitigation of damages.

Error to Cole Circuit Court. This was an action against Thomas L. Price and others to recover damages for an alleged wrongful entry upon a certain lot in the city of Jefferson, “ of which the plaintiff then was and still is in possession and owner,” and the building of an embankment thereon. The plaintiff alleges special damages. The embankment was built in the construction of the Pacific railroad. The defendants, by their answer, put in issue the alleged ownership of plaintiff, but did not deny the possession. At the trial plaintiff proved his possession, and introduced evidence tending to prove that the damages to the lot were as alleged in tlie petition. The defendants introduced evidence with a view to show that the trespass complained of was no injury to the lot,'but a benefit, the embankment on it being part of the Pacific railroad. This evidence showed no special benefit to said lot other than the general enhancement of value resulting to all real estate along the line of the road- from the construction of the road. This evidence was admitted against the objection of plaintiff. The defen- | dants then offered to prove that plaintiff, at the time of the | commission of the alleged trespass, had no title whatever to ‘ said lot, had none before, and none since, and has been and is a trespasser upon the same, the title being in one David B. North, in whose favor an action of ejectment was pending in the Cole circuit court, the- trial term of which was the term at which the trial in this cause was proceeding. This evidence wás excluded. The court, at the instance of the plaintiff, instructed the jury as follows: “ 1. It is admitted that the defendants, without leave, placed the embankment mentioned in the petition on the lot mentioned therein. 2. It is admitted that the plaintiff was, at the time of the commission of the alleged [trespass] and at the time of the commencement of this suit, in possession of said lot.” The court gave the following instruction at the instance of the defendants: “ 1. Damages are given as compensation, recompense or satisfaction to the plaintiff for an injury actually received by him from the defendants. They should be precisely commensurate with the injury, neither more nor less. The jury ought, therefore, in assessing the damages in this case, to give no more than will compensate the plaintiff for the injury he has received. If he has received no injury in fact, they ought to give nominal damages.” The following instructions asked by the defendants were refused: “ 2. In ascertaining the extent of the injury in fact, the jury ought to look to all the circumstances surrounding the property presented in the evidence and affecting the extent of the injury. 3. The plaintiff, having proved no title in this case but the mere possession, can recover only for the injury to the possession, if any, between the time of the commission of the trespass and the commencement of this action; that is, from the month of May, 1855, when the injury is alleged to have been committed, to the 14th of April, when the action was commenced.” The jury found for plaintiff. I. Evidence that the plaintiff had no title and was himself a trespasser, ought to have been admitted. To maintain trespass there must be a possession, and a right to that possession. (9 Cow. 39; 1 N. & M. 356; 4 Yates, 218 ; 11 Conn. 60; 6 Rand. 556; 2 Brown, 106; 4 Watts, 377; 1 Johns. 511; 4 Pick. 305 ; 4 Bibb, 218 ; 2 Hill, S. C., 466 ; 1 Har. & J. 295 ; 8 Mass. 411; 6 Mo. 583.) It must be a lawful possession. The courts will not assist one trespasser against another. Possession is prima facie sufficient. It is presumed to be lawful and consistent with the right of the owner, but it may be shown in defence to be otherwise. If not, wrong creates right; the trespasser having no right to the property injured, yet has a right to damages for an injury done to it. And more, the owner has a right to the same damages, and the recovery by the trepasser can not bar his recovery. Under such a rule the last trespasser would be liable to double damages. This can not be so where the possession of the plaintiff is lawful, and consistent with the right of the owner. In such cases, the^trespasser is liable to the party in possession for the injury to the possession, and to the owner for the injury to his reversionary interest. II. But if the evidence was not admissible in defence, it certainly was in mitigation of damages. If the law will assist one trespasser against another, it certainly will not give him damages beyond the injury to his wrongful possession. Possession is all he has to be injured, and to give him damages beyond this would be to offer a premium for trespass and pay a bonus for wrong. It would place a trespasser in a better condition than a tenant in lawful possession. While the latter is only permitted to recover for the injury to his possession, the former would be permitted to recover for the injury to the whole estate, and for no better reason than that he had wrongfully put himself in possession of it. The third instruction ought to have been given. The damages ought to have been confined to the injury to the possession. I. It was admitted by the pleadings that the plaintiff was in the possession of the premises at the time of the commission of the injuries complained of. He had therefore the right to maintain his action for such injuries. (1 Chitty’s PL 176.) The appellants in this case set up no license to enter from any person claiming an outstanding title ; they are therefore to be treated as strangers; hence there was no error committed by the court in refusing to permit them to show an outstanding title in another party ; in fact no such defence was set up in their answer. For the same reason the appellants’ third instruction was properly refused. The defendant’s second instruction was only calculated to mislead the jury, this court having heretofore decided that direct and peculiar benefits only can be taken into consideration in the assessment of damages done to the landholder in the building of roads. (Newby v. Platte County, 25 Mo. 276,) The instruction directing the jury to look to all the circumstances surrounding the property could have meant nothing more than to authorize the jury to consider the fact that the railroad was constructed near by it. The first instruction asked by the appellants, and which was given by the court, put the question of damages fairly to'the jury, and a verdict having been returned for much less amount than was claimed in the petition, it ought not to be disturbed.