DISSENTING OPINION.
ROBERTSON, P. J. — Inthe trial of this case no declarations of law were asked or given; neither were there any objections, to testimony that are urged here. "We held in our original opinion that this being the situation the position of the plaintiff here resolved itself into the contention that the court should have directed a verdict in his behalf, and this, we held, under the facts in this case, could not be done. I am yet of the opinion that we were correct in that holding. [Stoepler v. Silberberg, 220 Mo. 258, 269, 119 S. W. 418; Cousins v. White, 246 Mo. 296, 309, 151 S. W. 737; Mineral Land Co. v. Ross, 135 Mo. 101, 107, 36 S. W. 216; Gannon v. Gas Light Co., 145 Mo. 502, 517, 46 S. W. 968, 47 S. W. 907; Dyer v. Tyrell, 142 Mo. App. 467, 472, 327 S. W. 114; Dolan v. Gas Light Co., 145 Mo. 550, 46 S. W. 1333; Dyer v. Cowden, 168 Mo. App. 649, 154 S. W. 156: Howard v. Hurst, 156 Mo. App. 205, 137 S. W. 1; Crawford v. Stayton, 131 Mo. App. 263, 110 S. W. 665; link v. Jackson, 158 Mo. App. 63, 92, 139 S. W. 588; Dalton v. Poplar Bluff, 173 Mo. 39, 72 S. W. 1068; First State Bank v. Hammond, 124 Mo. App. 177, 101 S. W. 677; McCrosky v. Murray, 142 Mo. App. 133, 125 S. W. 226; Hugumin v. Hinds, 97 Mo. App. 346, 71 S. W. 479; Kingsbury v. Joseph, *54694 Mo. App. 298, 68 S. W. 93; Dodd v. Guiseffi, 100 Mo. App. 311, 73 S. W. 304; Hunter v. Wethington, 205 Mo. 284, 103 S. W. 543; Johnson v. Grayson, 230 Mo. 380, 394, 130 S. W. 673.]
In the case of Hill v. Dillon, 161 S. W. 881, recently decided by this, court, the burden was on the defendant, as it is here on the plaintiff, to prove to the satisfaction of the jury, or the court sitting as a jury, a given state of facts which was denied, thereby creating issues of fact, which it was the exclusive province of the jury, or the court sitting as a jury, to decide, and we there held that this court should not reverse and remand on that ground, 'citing other decisions, of this court to the same effect.
In the case at bar it was incumbent upon the plaintiff to prove the material allegations of his petition, which were denied by these defendants’ answer; that is, that he was. the owner of the land at the time of the alleged trespass and that the defendants, Bendelari and Cook, had the immediate personal supervision of the acts, of the defendant corporation, of which plaintiff complains, and that they did, with a principal’s authority, direct and control the piling of the tailings upon the land in controversy, or that they were possessed of such authority from the corporation,, and being so invested that their failure to prevent it should be held to be misfeasance upon their part. It was incumbent on the plaintiff, I think, to prove the actual authority of these defendants to direct in this matter, or that their conduct, if any, in this behalf, was ratified or acquiesced in by the corporation. It was the province of the trial court to decide these questions. The plaintiff testified that he was. the owner of the land, not giving the time when he became such owner, and the defendants referred to the land as the Robinson land; but none of the witnesses testified as to when he became the owner thereof, and, under the authorities, it was not the imperative duty of the court *547to believe any of this testimony. One of tbe defendants testified that he or his company at one time had an option on the land from one Parker and leaves the inference that by reason thereof he had, or supposed he had, the right to pile tailings upon this land. Either of the above facts, in my opinion, justified the court in refusing to render judgment against Cook and Bendelari. In any event, it was sufficient testimony to place it beyond the power of this court to hold that the trial court should have entered judgment against these defendants.
Deeming the opinion, of the majority in conflict with the decisions of the Supreme Court, the St. Louis and the Kansas City Courts of Appeal, above cited, this case must of necessity be certified to the Supreme Court for final determination.