Defendant was the owner of a tract of land in Lafayette county, through which was located a right of way eighty feet wide for a drainage ditch under the provisions of article 4, chapter 41, Revised Statutes 1909. On the 7th day of October, 1907, a contract for the construction of the ditch was regularly let to plaintiff as the lowest and best bidder, to be paid for in bonds of the drainage district as directed by the statute. His contract provided that he was to begin work within ten days after the bonds had been sold and complete the- same within one- year. The bonds were not sold until the 23rd of March, 1908, and he did not b'egin to dig the ditch until in August of that year. He finished it in due time thereafter. It seems that there was growing timber on *331the right of way through defendant’s land and that plaintiff’s contract provided for the construction of dams where the ditch crossed a certain creek and that these dams were to he braced by timber which the contract stated he could take from the right of way. After the contract was let to him he went over - the route of the ditch, including defendant’s lands, observed the timber and saw that it could be used.
Between the time when he secured the contract and when he reached defendant’s lands with the construction of the ditch, defendant cut and hauled away the growing timber. Thereafter, in March, 1910, he began this action in trespass for treble damages under section 5448, Revised Statutes 1909, reading as follows: “If any person shall cut down . . any timber . . . standing, being or growing on the land of any other person . . . the person so offending shall pay to the party injured treble the value. of the thing so injured, broken, destroyed or carried away, with costs.” It is further provided by section 5451 of the same statute that if it shall appear on trial that the “defendant had probable cause to believe that the land on which the trespass was; committed . . . was his own,” only single damages could be recovered.
In this State the fee of land over which a highway or street is laid out remains in the owner with an easement to the public. He remains the owner of the product of the land on, under or above the surface, the taking of which would not injure the construction or the public use. [Gamble v. Pettijohn, 116 Mo. 375; Gans & Sons v. Railway Co., 113 Mo. 308; Snoddy v. Bolen, 122 Mo. 479; Walker v. Sedalia, 74 Mo. App. 70; McAntire v. Telephone Co., 75 Mo. App. 535; Pemberton v. Dooley, 43 Mo. App. l. c. 178; Belcher Sugar Co. v. Elevator Co., 82 Mo. l. c. 125; Thomas v. Hunt, 134 Mo. 392.]
*332We are therefore satisfied that when defendant cut the timber on the right of way he was not cutting timber on “the land of.any other person,” hut on land of his own, and that he was, therefore not guilty under the trespass, statute.
One who lawfully obtains a contract for constructing a drainage ditch as contemplated by the statute does work for the public and he may clear the right of way of obstructions, such as earth, timber, rock, etc., and, in analogy to the right of the public in constructing roads, he may use such material in the construction of the ditch. The use of such material on the right of way is an incident to the work. [Robert v. Sadler, 104 N. Y. 229; Jackson v. Hathaway, 15 Johns. 447, 453; Denniston v. Clark, 125 Mass. 216, 221, 222; Deaton v. County of Polk, 9 Ia. 594; Viliski v. Minneapolis, 40 Minn. 304; Phifer v. Cox, 21 Ohio St. 248.] But the fact that he has become the contractor to dig such ditch does not vest in him the title to the land over which the right of way is located. The right to use timber and other material which may be necessary is a part of the easement the public has; and conceding the contractor represents the public in the exercise of such right, he would be confined and limited to the right of the public. The public right, we have just said, is to use so much of the timber on the right of way as may be necessary for the proper construction of the ditch; whereas plaintiff counts himself the absolute owner of all the timber on the right of way, regardless of what may be necessary to the work he has to do. And in giving practical application of this idea, the record shows he purposed putting in a sawmill and thereby taking to himself as owner the whole of the timber.
We think that whatever remedy plaintiff may have, if he was deprived of the use of timber to which he was entitled, it is not for a violation of the trespass statute upon which he has founded his action.
*333It appears that the court gave a peremptory instruction for the defendant before the evidence in plaintiff’s behalf had closed, and he complains of this. We do not see that there was any error in this. Plaintiff’s case and claim was made to appear fully before the court acted. Courts may close the case on the' opening statements of counsel which show there can be no recovery by his client. [Pratt v. Conway, 148 Mo. 291, 299; Tootle v. Buckingham, 190 Mo. 183, 196.]
The judgment is affirmed.
All concur.