(after stating the facts). It was error to exclude the testimony of the witnesses to the effect “that appellants had been making staves and getting timber off the lauds from which the logs in controversy were cut, and that they had claimed to own the same for the last five years, and that it was known as the Oxley Stave Company’s land.” The defendants stand mute, and put the appellant to the test of its right to recover the possession upon the strength of its own title. They set up no affirmative title in themselves. Under this state of case, it devolves upon the appellant to show only a prima facie right to the possession. Has it done this? The proof shows that one of the appellees admitted that most of the logs in controversy were not cut on lands belonging to them, and that they knew that the lands from which these logs were taken had been claimed by the Oxley Stave Company for six years. With this knowledge, they permit the agent of the appellant company to take charge of the logs in controversy, as the property of the company, to put the brand of the company upon them, and, without objection, to roll them into the river, and to raft them to Corning. On the contrary, instead of objecting, assisting one who had peacefully and lawfully taken possession of the property under a claim of ownership to raft it down the river. Then, in the absence of the one who had thus taken possession, but was still evidencing his claim of ownership, they proceed forcibly to take the possession, and threaten even a breach of the peace, and personal violence, in its retention. The conduct of appellees does not present them in any favorable attitude before this court. The testimony of Barnett tends to show that they are self-* confessed trespassers upon some one’s lands—one of them said the lands of a firm in Illinois, but that “the Oxley Stave Company had claimed them for six years.” It was the duty of the appellees, when the agent of appellant first took charge of these logs, and branded them, and began to roll them in the river, to speak out and assert their rights then, if they had any. This would have been the ordinary and natural course of human conduct, especially of those who knew or believed themselves the bona fide owners of property. Nailing to do so, their conduct was tantamount to an admission of the rights of appellant to the possession of the property. The proof by several witnesses that the land was known as the appellant’s land, that it claimed it, and had exercised acts of ownership, such as cutting timber, making staves, etc., for five or six years, would tend to show that appellant itself was not a trespasser, but had the right to the timber of the land.
If the appellant, as this proof tended to show, was or had been in the possession of this land for five or six years, for the purpose of cutting timber, and claiming the land as its own, the presumption would be that it was the true owner, until the contrary was shown. Barry v. Otto, 56 Mo. 177; Smith v. Lorillard, 10 Johns. 356; Crockett v. Morrison, 11 Mo. 3; Dale v. Faivre, 43 Mo. 556. Certainly these facts, taken in connection with appellees’ own conduct, were sufficient to make a frima facie case of appellant’s ownership and right to the possession of the logs in controversy.
2. Exception in gross to several instructions.
The objection to the instructions given was in gross, and we have only considered them to the extent of ascertaining that some one them is correct, which we find to be the case.
Nor the error indicated the judgment is reversed, and cause remanded for new trial.
Riddick, J., was disqualified.