Phillips v. Smoot
Supreme Court of Missouri
That the court below erred in refusing instructions asked by defendant. Because, unless the plaintiff prove, that he was, at the time of the alleged trespass, in possession, actual or constructive, he cannot recover. There is no proof of possession in plaintiff, but merely that permission was given him, for an uncertain period of time, to depasture his cattle in the field! 3 Stark. Ev. 1089 to 1103; 1 Vol. Mo. Rep. 486, Pery vs. Block et al.; 7 Mo. Rep. 162, Davie vs. Wood.
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That the court below erred in refusing instructions asked by defendant. Because, unless the plaintiff prove, that he was, at the time of the alleged trespass, in possession, actual or constructive, he cannot recover. There is no proof of possession in plaintiff, but merely that permission was given him, for an uncertain period of time, to depasture his cattle in the field! 3 Stark. Ev. 1089 to 1103; 1 Vol. Mo. Rep. 486, Pery vs. Block et al.; 7 Mo. Rep. 162, Davie vs. Wood. But if possession is not necessary, under the statute, to sustain this action, it is certainly necessary in order to the…
1Opinion of the CourtRyland, J.
This was a petitionbrouglitin Marion circuit court by Phillips, against Smoot, for voluntarily thi owing down and leaving down a fence that did not lead into the defendant’s enclosure, whereby the cattle of the petitioner escaped, and he was put to trouble and expense in getting them again. The petition is founded on a breach of the statute of this State concerning “trespass,” which declares, that if any person shall voluntarily throw down any fence, &c., and leave the same down, not leading into his own enclosure, he shall pay to the party injured the sum-of five dollars and double the-…
2Cited by1 opinion
- Gilleland v. DrakeTexas Commission of Appeals · 1881