Cotton v. Huston

SMITH, P. J. — Action in replevin. The case disclosed by the evidence contained in the record may be stated'in about this way: The plaintiff’s inclosure was separated from that of the defendant by a division fence, something like 200 rods in length, which had been constructed nearly twenty years previously under an agreement between the three adjoining landed proprietors to the effect that the one under whom plaintiff claimed would construct and maintain the north one hundred rods of said fence, and the other, under whom ■defendant claimed, would construct and maintain the south one hundred rods -thereof. It appears that the fence was constructed of posts and three strands of wire stretched and fastened with staples to such posts. It further appears that the north one hundred rods of the fence was thrown down by defendant for a considerable distance and at other places therein was allowed to get out of repair so that it was wholly insufficient [72] to turn stock of any kind. The plaintiff turned into his inclosure upwards of one hundred head of cattle, of which he was the owner, to graze on the grass thereon growing, and while there they broke through that part of the division fence which the defendant was hound to maintain, and entered his inclosure, damaging his growing crop of corn. The defendant drove all of them out except three head which he detained for the damage that had been done to his growing crop of corn. The plaintiff brought this action of replevin to recover possession of the same. There was a trial and at the conclusion of the evidence which, with little or no contradiction, tended to prove the facts in substance-as already stated, the court gave for plaintiff a peremptory instruction telling the jury that under the pleadings, stipulations and evidence to return a verdict ■for plaintiff for $100 — the agreed value of the cattle which the defendant had disposed of and did not have in his possession. The judgment was given accordingly, and defendant appealed. In view of the law as declared by us in several analagous cases, we do not think the propriety of the action of the court in giving said instruction is open <to question. [O’Riley v. Diss, 41 Mo. App. 184; Hopkins v. Ott, 57 Mo. App. 292; Field v. Bogie, 72 Mo. App. 185; Jackson v. Fulton, 87 Mo. App. 228.] To add anything to what is said in these cases would be supererogative. • The judgment will be affirmed. All concur.