
    NEAL WALKER vs. JOHN S. NEWHOUSE.
    1. If the owner of land grants a right of way to another, and afterwards grants the land to a third person, he takes it subject to the right of way.
    2. If the plaintiffs in trespass, claims title directly as intermediately under a person, who has previously granted a right of way over the land to the defendant, it is a good defence for pa-sing over the land; and in such cases it is immaterial whether the person under whom borh claim, had title or not.
    3 Our statute permits the record of a deed to be read, when the original is lost, or is not in the power of the party wishing to use it; but the practice, in admitting or rejecting such testimony, must depend somewhat on circumstances.
    4. A defendant is only bound to make out a prima facia defence, and will not be presumed to have in his possession the plaintift’s title papers.
    APPEAL from the St. Louis Circuit Court.
    STATEMENT OP THE CASE.
    NewhoUse, the appellee, brought his action of trespass qua dan. fre. in St. Louis circuit court against Walker, the appellant, Wallce1- appeared, and pleaded several pleas, to some of which a demurrer was sustained. As the questions arising on tbedemurrers are not brought into this court, it is not necessary to set out the progress of the litigation in settling the pleadings. The pleas, as finally settled, were the following:
    1st. The general issue.
    2nd. A plea of license.
    3d. A plea stating that on the 19th of November, 1839, John Riggin was the owner in fee o the locus in quo, and by deed of that date did grant to the defendant a right of way over the lotus, and did make out, assign and designate the said way, and did put the defendant in the use and enjoyment of the same, and the defendant justifies the trespasses Under the said grant of Way.
    4th. A plea stating a grant of way by John Riggin. the oWndf of the locus, and justifying the trespasses Under said grant, as in the former plea.
    The replications to these pleas were as follows :
    1st. To the general issue,
    2nd. A traverse of the license stated in the 2nd plea.
    3d.To the 3d plea three replications :
    
      First. That Riggin did not grant (he way.
    Second. Tnat Riggin was not owner in lee.
    Third. That Riggin did not mark out said way.
    4th. To tile i'ourlhp.ea two replications.
    First. That Riggin was not owner in fee.
    Second. That he did not grant the way.
    The issue thus found was tried by a jury.
    The plaintiff proved that he had been for some years in possession of a farm, over which the defendant claimed the right of way in question, and that at various times before the bringing of this suit, the defendant with his teams and carriages'passcd and repassed across and over his farm. This was the plaintiff’s case.
    Tne defendant then introduced witnesses who proved, in substance, that they were acquainted with the premises, and that defendant had frequently travelled over plaintiff’s land from defendant’s land to the Bellefontaine Road. The testimony of the witnesses tended to prove that the defendant, had no other way of getting from his house and land to the public road,
    Dishawan testified that he knew the premises in question at the time that Riggin lived there in 1S39. The way was then used by Walker, and was plainly marked. Riggin told witness it was Walker’s road; it was so called. A diagram showing the situation of the premises was pioved, and is pieserved on the record.
    The defendant then read a deed from Riggin and wife, dated November 9, 1839, to defendant, regularly executed and recorded. It contained this clause :
    ‘•The said parties of the first part, for themselves and their heirs, further contract and agree with said Neal Walker that they shall and will provide a toad or outlet for the free egress and ingress of said Walker, his heirs or assigns from the tract of land aforesaid to the road commonly called the Bellefontaine Road, for and during the full term and time of twenty years yet to elapse, commencing from arid after the day and'date hereof”
    The defendant then lead a deed from Riggin and wife to O’Fallon, dated March 9, 1840, conveying the land lying east of Walker, subject to the light of way, as expressed in the deed to Walker.
    The defendant then offered a copy of a deed duly certified from Riggin to Ferguson. The plaintiff objected that the original was not accounted lor, and that the copy was inadmissible.
    The court sustained the objection and the defendant excepted.
    The defendant offered the deposition of Riggin. The plaintiff, however, objected that Rig-gin was incompetent to testify, on the score of interest, and from the record it appears that the plaintiff at the time of the trial (no previous notice having been given) called on (he defendant’s attorney to produce some dped from Riggin, that the attorney refused, and thereupon the plaintiff read a copy, (the defendant objecting) and the court thereupon excluded ti.e deposition of said Riggin. The defendant excepted.
    The court gave these instructions for plaintiff:
    “Unless the jury find from the evidence that the plaintiff either claimed title or possession of the premises mentioned in his declaration, either directly or mediately from John Riggin, no grant by said Riggin can rest in said defendant as against the plaintiff a right of way over said premises, provided the jury shall find that the plaintiff'had possession of said premises at the time of the committing of the trespasses for which he sues, claiming to be owner thereof.’’
    “The jury will exclude from their consideration the testimony of Dishawan as to the declarations of Riggin in regard to Walker’s road.’’
    Defendant excepted to the above.
    The court refused (he following instructions moved by defendant:
    1. “If the court shall believe from the evidence that (he defendant did no more in passing over the land of the plaintiff on a road granted to him by deed from Riggin, dated 19th Nov. 18'39, given in evidence, than in using a road or outlet for (he egress or ingress of himself and family from his farm orland to and from the Bellefontaine road, then the plaintiff cannot recover in this action."
    2. “The bare possession of Riggsn, in the absence of all proof of a better title, is sufficient to authorize the grafting to defendant a rig&tt of way, and it the jury believe that said Riggin ■did grant said right of way, and designate a road for said defendant to travel on, and that said defendant did occupy and travel said road, without doing any injury to the premises beyond the necessity of the case, then the verdict must be for the defendant.”
    3. “That abare possession of real estate is not sufficient; to support this action, unaccompanied 'by any proof of the right to the possession.”
    The defendant excepted to the refusal of the court as to the foregoing instructions.
    The jury found a verdict for the plaintiff.
    A motion for a new trial assigning the usual reasons, was made, and overruled by the court
    To this action of the court the defendant excepted.
    The case comes to this court by appeal.
    Field & Carroll, attorneys for appellant.
    I. The-court: beiowcrred in excluding Riggin’s deposition.
    The plaintiff, having examined the witness himself as to his interest, was precluded from going into other evidence on that point. I Greenl. Ev. p. 573, sec. 423. Besides, it was wholly irregular to show a copy in evidence on a mere-call for the original at the trial, with■out a previous notice to produce if.
    II. There was error in rejecting the copies of deeds offered by the defendant!, for he did not ■ciaim under them and would be presumed not to have the custody of the originals. See the rule on this subject stated in 1 Greenl. Ev.<540, note 2, and cases there cited.
    III. There was error in giving the plaintiff’s instructions.
    1st. Tire possession of Riggin was evidence of title in fee sufficient to support the grant or even to sustain an ejectment against jSewhouse, for anything shown by the latter on the trial. Crockett’-vs. Morrison, 11 Mo R. 1.
    
    2nd. Whether Newhouce claimed under Rigg:n was, therefore, immaterial in the actúa state -of the testimony.
    3d. But there was sufficient evidence to warrant the court and jury in finding that New-house claimed under Riggin, for he succeeded him in the possession, and Riggán’s possession must-be presumed 'rightful, consequently Newhonse must have claimed under Riggin or be regarded as a trespasser on his possession.
    4th. The second insti uction was plainly erroneous, for the declarations there spoken of refer to the particular locality of a way which the party had granted and was bound to mark -out and assign.
    5th. The use of the -way by tire defendant before and contemporaneously with the plaintiffs going into the possession,is a decisive-cir-cusastance of nolice to the plaintiff, which the court ¡below took sight of!
    IV. The second instruction moved ky the defendant ought to have been given for the rea ■sons already staled.
    V. The -defendant-as against Siiggin and those claiming under him, was entitled to a way from necessity.
    VI. The merits of the case -were ] lainly with the deft ndant belt w, ¡ nd a new trial ough 4o have been gtanted.
    Polk, for defendant in error.
    I. It app< ->rs from the record 'hat when defendant offered the deposition of John Riggn II e plaintiff objected to it as inadmissible for the reason of the witness’ info-test, This interest he offered to prove ; and for this purpose he called on the attorney of defendant to produce a deed from said Riggin to defendant, which he refused to produce ; and therefore the counsel oí plaintiff offered to read to the court, for the purpose of showing the witness inieiested, a duly certified copy of the record of said deed. And though the defendant objected, the court allowed such copy to be rene'. And such copy was competent. The oiiginal was in possession of ihe defendant. The attorney did not deny having the deed demanded in his possession in court, but admi'ting impliedly its possession, lefused to produce it. In such a state of things, tne plaintiff was authorized to prove its contents and give a certified copy of the record of the deed in evidence. 1 Stark. Ev. 853; Lynde vs-. Judd, 3 Day, 499.
    II. The bill of exceptions does not give the copy of the deed which plaintiff’s counsel read to the court to show the interest of the witness Riggin. This eouit, therefore, cannot nee that said witness was interested. This eouit will presume that the court below acted correctly, until the eontiary be shown. This court c..nnot, therefore, reverse the judgment of the court below for excluding Riggln’s testimony. State vs. MeCutchen, 5 Mo. R. 522; Stewart vs. Small, 5 Mo. R. 528.
    1Í. (A) The hill of exceptions does not contain the deposition of Riggin which was offered! by defendant and excluded by the court, and therefore, Ibis court cannot say that the court below etred, Finney vs. Watkins decided at this term of the court. This point, if mled for appellee, disposes of the two first points.
    III. The bill of exceptions shows that the defendant offered in evidence the copy of a deed from John Riggin’s trustee to Alexander Ferguson, which, ®n objection by plaintiff’:» counsel was excluded by the court.
    The appellee: insists that tlW circuit court did light in excluding the cosy.
    As preliminary to offering the copy, it was not shown that the original was in.the posse»sion of ihe opposite party, and that he had been notified to produce it. The opposite party was not a party to the deed. The parties to it were strangers, and of course it was to be presumed they had the original deed. In such case, a subpoena d'uce-t iecum would have- pio-duced the deed unless it was lost or destroyed, and it was not shown to have been either lost or destroyed, nor was it shown tint the original was not in the power of the-defendant.
    it is submitted, therefore, that there was no cuse ma ife-fur giving the copy, in evidence, and. the circuit court did right to exclude it from the jury.
    A transcriptof the record o f a deed by ihe statute can only be read in evidence where it shall be shown to the court t iat the deed is lost, or r.ot within the power of the party wishing to use it. fee code ofl845, p, 227 sec. 46.
    IV. '! be record shews i hat plaintiff, Newliouse, had possession of the premises trespassed upon by the defendant, Walker, at the time of the commission of the-trespass. The record also -bows, that Newhcmse neither derived sucb possession nor claimed any title under Jolrn Riggin. It is also obvious in such a case, that a grant of right of way over the premites by Riggin. could in no manner give any right'to Walker against Newhouse to enter upon the same, and intrude upon Newman’s possession — unless it was true that Riggin had- title paramount to said premises. But Ike record shows no such title in Riggin.
    The first instruction given by the court below, on prayer of plaintiff, but asserts Ihese-plaitr propositions-. And it was tbe'refoie- correctly given by that court.
    V.If the plaintiff below did not claim either title-or possession o/the premises trespassed upon by the defendant Walker, from John Biggin, then it is clear, that no declatafions By Rio-o-in about Walker’s road could in any way effect the rights of said plaintiff; for Riggin would be but a stranger to the-plaintiff. This is the very case that is made by the bill of exceptions in Ihis cause.
    The court below, therefore, might well fell file jury, as it did, in the secoad insfructio» asked by plaintiff’s counsel, that they ought to exclude from their consideration the testimony of Dishawan as to the declarations of John Riggin in regard to Walker’? rood
    
      The court below did right in refusing the first instruction prayed by defendant’s counsel.
    That instruction assumes that Riggin had the power of granting a right of way over the premises in plaintiff’s possession. But the frulh in the case was, he had no such authority. He could not make such grant as having the paramount title; for, as already statea, no such title was shown in him.
    Nor could he make a grant which would be good as against the plaintiff, even though he had not theparamount title, on the ground that the palmtiff would be bound by it, because of nis relation to Riggin; for he in no way claimed either his possession or any sor! of title from Riggin.
    Til. The second instruction of the defendant, asserts the proposition that a bare possession in R'ggin was sufficient to authorize him to grant a right of way that would be good, even after his possession had ceased, against all the world. It does not say — against those claiming under Riggin.
    It is undeniable that the naked possession of Riggin was no better than the naked possession of Newhouse, not derived from Riggin. He therefore, could not, while in possession, make a grant which could effect the subsequent and independent possession of !he plaintiff, Newhouse.
    VIII. Mere possession is sufficient to enable the plaintiff to maintain this action, and the circuit court ought to have refused the defendant’s 3d instruction, as it very .pioperly did; 1 Chi’. PI., Uil; 1 East. R., 244; 4 Jannt. 547 ; 3 Bur. 1563; 2 Stark. Ev. 303.
   Napton, J ,

delivered the opinion of the court.

How the merits of this case may be, does not appear from the state of the evidence. Tile plaintiff brought trespass quail clan fregit, and the defendant justified under a right of way derived from one Riggin. in 1838. The plaintiff proved his possession and the commission of the trespasses charged, and the defendant produced a deed from “Riggin in 1839, giving him a right of way over the land then occupied by Riggin, and now by plaintiff. The defendant also attempted to trace the plaintiff’s title to Riggin, and for this purpose offered a record copy of a deed from Riggin’s trustee to one Ferguson. But this was excluded, because it was a copy, and here the case ended.

Xf Riggin was the owner of the land in question in 1839, or whether owner or not, if the plaintiff claimed under him directly or intermediately, it is clear that the defendant made out his defence. If the plaintiff held under Riggin, lie took Riggin’s tittle or interest, subject to the covenant.

Our statute permits the record of a deed to be read, when the original is lost or is not in the power of the party wishing to use it. There is no pretence here that the original was lost, and the question is, whether the defendant comes within the other contingency provided for. It is certain that the defendant might have issued his subpoena duces tecum — but to whom? It is sometimes customary for vendors to part with their title papers, but they are sometimes retained. Besides, it is not certain that whoever might have been summoned, would have been compelled to produce his deeds. There are many cases in which a party is not compelled to produce his title papers.

The defendant was only bound to make out a prima facie case. He is not presumed to have in his possession the plaintiff’s title papers. I am not prepared to say, that the position taken by the plaintiff in this case may not be correct in general, and that a court in most cases, before permitting a record copy of a deed to be read, would require some efforts to have the original produced. The practice must depend somewhat on circumstances. It is obvious, that in this case, if the copies of the deeds offered had been produced and used, the plaintiff had it in his power to correct any mistake, by producing the original.

The instructions which the court gave were correct. We think the court should have admitted the record copies of the deeds offered.

Judgment reversed and cause remanded.  