King's Adm'r v. St. Louis Gas Light Co.

Bates, Judge, delivered the opinion of the court. So long as the plaintiff had the land, the possession of which is in controversy, fenced, there can be no doubt that his possession was such as would support an action for forcible entry and detainer, and in such action it is immaterial how I he acquired it. If he acquired possession wrongfully he was [39] subject to an action therefor, but his unlawful entry cannot be set off against an unlawful entry upon his possession. When his fence was swept away by the high water, he did not of necessity and immediately lose his possession. He might then and afterwards have abandoned it; but if he did anything indicating his intention to hold the possession, it would be sufficient to give him the actual possession. (Bartlett v. Draper, 23 Mo. 407.) The three instructions given by the court stated the law correctly and fairly. The second uses almost precisely the same language approved by this court in the case of Bartlett v. Draper, above cited. Judgment affinned. Judges Bay and Dryden concur.