Grobe v. Energy Coal and Supply Co.

^* Headnotes 1. Pleading, 31 Cyc., pp. 82, 729; 2. Pleading, 31 Cyc., p. 336; 3. Navigable Waters, 29 Cyc., p. 289; 4. Evidence, 23 C.J., p. 81, Section 1862; 5. Trespass, 38 Cyc., p. 1017; 6. Appeal and Error, 4 C.J., p. 957, Section 2938. This is an action to recover for some gravel alleged to have been wrongfully taken from the bed of Black river. The cause was tried before the court and a jury, and resulted in a verdict and judgment for plaintiff and defendant appealed.

Plaintiff alleged that he was the owner and in the possession of the following described land in Butler county, to-wit: all of lot 7 in section 36, township 25 north, range 6 east, containing 26 and 58/100 acres; that said land bordered on Black river and formed a part of the bed and banks of said stream. Plaintiff further alleged that between June 1st and October 1, 1921 "defendant wholly without right or authority wrongfully took and carried away two thousand yards of gravel, theretofore lying and being on and comprising a part of said described lands, and wrongfully and without right or authority converted the same to its own use, which said gravel so taken and converted was and is of the reasonable value of fifty cents per yard," etc. The answer is a general denial.

Defendant contends (1) that the petition is fatally defective; (2) that Black river at the point where the gravel was obtained is a navigable stream in the full and complete sense; (3) that error was committed in giving and refusing instructions; and (4) that counsel exceeded legitimate bounds in argument. Plaintiff's cause is primarily bottomed on the proposition that Black river is not a navigable stream in the broad sense, and to the extent of limiting plaintiff's ownership at the low water mark. Plaintiff did not allege that Black river was not a navigable stream. Defendant filed no demurrer, but interposed an objection to the introduction of evidence on the ground that the petition did not allege facts sufficient to constitute a cause of action. After verdict, absent any challenge except an ore tenus demurrer, every reasonable intendment will be indulged in favor of the sufficiency of the petition, and where omitted allegations may be implied from allegations made in the petition, then the defect of omission is cured after verdict. [Powell v. Rawson Land Co., 221 S.W. (Mo. App.) 765; Shaler v. Van Wormer, 38 Mo. 386; Keaton v. Keaton, 74 Mo. App. 174; Wisecarver v. Ins. Co.,137 Mo. App. 227, 117 S.W. 698; Peoples Bank v. Scalzo, 127 Mo. 164, 29 S.W. 1032; Robinson v. Levy, 217 Mo. 498, 117 S.W. 577; Reineman v. Larkin, 222 Mo. 157, 121 S.W. 307; Vaughn v. May, 274 S.W. (Mo. App.) 969.] Plaintiff alleges that defendant "wholly without right or authority wrongfully took and carried away 2000 yards of gravel . . . comprising a part of said described lands and wrongfully and without right or authority converted the same to its own use." If Black river is a navigable stream to the extent as contended by defendant then defendant could not have acted wrongfully in the manner charged so far as plaintiff's rights were concerned. The demurrer admits that defendant acted wrongfully as charged, hence the allegation that Black river is not a navigable stream may be implied from the allegations made. We think the petition good against an oretenus demurrer.

Is Black river a navigable stream in the broad sense along by plaintiff's land? At Poplar Bluff there is a railroad bridge across Black river generally known as and most frequently designated in the record as the "Cat" bridge. An abundance of evidence was introduced to show that Black river is a navigable stream both below and above Cat bridge. A navigable stream in the broad sense where the title to the bed is in the public "is a stream such as will permit and bear the passage of ordinary boats of commerce upon the bosom of its waters." [Hobart-Lee Tie Co. v. Grabner, 219 S.W. (Mo. App.) 975, l.c. 977; State ex rel., Applegate et el., v. Taylor, et al., 224 Mo. l.c. 485; 123 S.W. 892; Wright Lumber Company v. Ripley County, 270 Mo. 121, 192 S.W. 996.] The navigability in the broad sense of Black river south of the Cat bridge is not an issue here. The issue here is the navigability of Black river north of the Cat bridge, and especially along and adjacent to plaintiff's lands. The question of the navigability of small rivers is discussed at length in the last above cited case, and we could not add to the clarity of the law by a discussion of the question here. Neither do we think that that a detailed statement of the evidence is at all necessary. We may say however that there is no evidence of a substantial nature tending to show that Black river along and adjacent to plaintiff's lands is a navigable stream in the broad sense and to the extent that the title to its bed is in the general public. We will take judicial notice of the fact that such is not the case. [State ex rel. Applegate v. Taylor, et al., supra; Hobart-Lee Tie Co. v. Grabner, supra; Wright Lumber Company v. Ripley County, supra; Weller v. Lumber Co.,176 Mo. App. 243, 161 S.W. 855; Northcutt v. Lumber Company,187 Mo. App. 386, 173 S.W. 15; Slovensky et al. v. O'Reilly et al., 233 S.W. (Mo. Sup.) 478.] Black river at the point in question is no more than a public highway upon which the public have certain rights, which we considered in Hobart-Lee Tie Co. v. Grabner, supra, and which has been considered in a great number of cases in this State; but certainly Black river at the place in question is not such a stream "as will permit and bear the passage of ordinary boats of commerce upon the bosom of its waters."

Defendant makes the point that plaintiff failed to establish that he owned the land described in his petition, and that recovery cannot therefore, be had. Plaintiff did not show an unbroken chain of title from the Government down to him, but he did introduce muniments of title showing that he has at least a shadow of title, and also he showed that he was in possession and had been for several years. Possession alone is sufficient to maintain an action of trespass as against a stranger. [Watts et al. v. Loomis et al., 81 Mo. 236.]

The instructions given for plaintiff and defendant covered the issues, and there is no just ground for complaint. Defendant got all that it was entitled to in the instructions, and perhaps more.

There is no merit to the assignment based on the alleged improper argument of counsel. Plaintiff's counsel stated to the jury that the plaintiff was a farmer "just like many of you gentlemen and on the other hand you have a legal fiction, a corporation." — At this point an objection was made to an attempt "to arraign the defendant for being a corporation, and I ask to have the jury instructed to disregard that argument." Thereupon the following occurred: "COURT: I didn't understand counsel to mean there would be a different law for a corporation to what there would be for an individual and of course, that isn't the law. I am sure that counsel has not meant that.

MR. PHILLIP: It is improper for the reason he is trying to prejudice the jury by saying the plaintiff is a farmer just like them on one side of the case and a corporation on the other.

MR. MULLOY: Well, I will take it all back and make apology and start again.

MR. PHILLIPS: I except to the failure of the court to instruct the jury to disregard the statement of counsel for the plaintiff."

We do not think that any harm or prejudice came to defendant because of the remarks complained of.

We have gone carefully through this record, and we find no error of substance. The judgment should be affirmed, and it is so ordered. Cox, P.J., and Bailey, J., concur.