— The plaintiff’s cause of action as stated in the second count of his petition, and upon which a recovery was had, is based upon the entry upon, and appropriation of certain lots by defendant railway company, in the year 1886, situated in the town of North Denison, in Barton county, Missouri, by locating and building its railroad through and over the same, and occupying the same for a depot and grounds.
It charges that the defendant is the owner of a line of railroad from Nevada city, in Yernon county, to Min-den, in Barton conuty.
The third count of the petition, upon which also a recovery was had, charges that on . the tenth day of June, 1886, defendant, by its agents and employes, while operating a line of railroad from Nevada City to Minden, negligently permitted fire to escape from a locomotive engine and set fire to plaintiff’s meadow, whereby he was damaged.
The answer of defendant was a general denial, and further averred that the corporation that built and owned the railroad, which was built over the lands, in the second count described, was not the defendant; but was the Nevada and Minden Railway Company, a corporation existing and created under and by virtue of the laws of Missouri, and that it is still existing and fully organized.
• The answer to the third count averred that the fire, which destroyed plaintiff’s property, was set out by the contractor of the Nevada and Minden Railway, and not by defendant.
The reply in effect charges, that if said railroad was built in the name of the Nevada and Minden Railway, *710it was so built by the agents and employes of defendant, and with, its money, and is now the property of defendant
It is wholly unnecessary to consider any of the points presented by the parties to this cause for the reason that it appears by the testimony mainly of defendant’s chief officers; testimony, too, introduced by defendant, that the Nevada and Minden railroad was in fact the Missouri Pacific Railway under that name. The name, Nevada and Minden, was a mere pseudonym. The road was constructed for defendant, and by defendant, and paid for with its money. It has always been in possession of defendant and is now. It has always been solely operated by defendant and is now. It appropriated plaintiff’s property and when sued for the trespass it, in effect, says this: That it committed the act, but did it under an assumed name. John Smith’s trespass could as well be excused under the plea that while committing it, he was calling himself John Jones. The evidence does not present a case of one road aiding in the construction of another, in which the officers and stockholders of one were the officers and stockholders of the other.
The contention of defendant as to the third count is that the fire was set by a train being operated by the contractor who had the contract for the construction of the road, and before it was turned over to the company, said contractor and train not being under the control or supervision of defendant. This question was submitted to the jury under proper instruction and found against defendant. There was evidence sufficient to justify its submission.
W e will affirm the judgment