Summary
In E.L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So.2d 846, 847, it is said that there must be "a degree of recklessness so gross as to constitute willfulness.
Summary of this case from Howse, et al. v. RussellOpinion
No. 34545.
September 22, 1941. Suggestion of Error Overruled December 8, 1941.
1. ADVERSE POSSESSION.
In suit to recover value of trees alleged to have been unlawfully cut and removed from property allegedly belonging to plaintiff and to recover statutory damages, where the parties undertook to establish title to land by adverse possession, a fact question for the jury on that issue was presented (Code 1930, sec. 3411).
2. TRESPASS.
Statutory damages for cutting timber from the land of another may be allowed only where the proof shows that the cutting was "willful," and mere mistake or carelessness is not enough, but there must be both knowledge and intent or a degree of recklessness so gross as to constitute willfulness (Code 1930, sec. 3411).
3. TRESPASS.
In suit to recover value of trees alleged to have been unlawfully cut and removed from property allegedly belonging to plaintiff and to recover statutory damages, where it appeared that defendant's record title was at least as good as that of plaintiff, but jury resolved doubtful issue of prescriptive title in favor of plaintiff, in absence of clear proof of deliberate design, a reasonable exercise by either party of his asserted rights was not "willful," and plaintiff could recover value of trees but not statutory damages (Code 1930, sec. 3411).
McGEHEE, J., dissenting in part.
APPEAL from the circuit court of Calhoun county, HON. T.H. McELROY, Judge.
Stone Stone, of Coffeeville, and Fred B. Smith, of Ripley, for appellants.
There are a number of cases that demand that this statutory damage claim be disallowed and we will only name a few of the strongest: Murphy v. Seward, 145 Miss. 713, 110 So. 790; Smith v. Saucier, 40 So. 328; Smith v. Lundy, 175 Miss. 485, 167 So. 631; Buckwalter v. Wright, 159 Miss. 470, 132 So. 443; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Seward v. West, 168 Miss. 376, 150 So. 364, the strongest of all.
We consider it unnecessary to go over these cases point by point because they are all in accord and all go to show that a party does not even have to have a survey; all he has to do is to exercise reasonably good faith to get his own and let the other man's alone. It is not a little carelessness that forces him to pay statutory damages; it is willfulness or recklessness that amounts to willfulness, and that creates the quasi criminal condition that demands the imposition of statutory damages.
See, also, Keirn v. Warfield, 60 Miss. 799; McCleary v. Anthony, 54 Miss. 708, 711; Ladnier v. Lbr. Co., 135 Miss. 632, 643, 100 So. 369; Planters' Package Co. v. Parsons, 153 Miss. 9, 14, 120 So. 200, 201.
C.A. Bratton, of Oxford, and W.J. Evans and Paul M. Moore, both of Calhoun City, for appellee.
Such cutting was done willfully, intentionally and knowingly, or recklessly, carelessly and without taking due and proper precaution to prevent the commission of a trespass.
The penalty of the statute runs as soon as it is shown by a preponderance of the evidence that plaintiff was the owner of and in possession of the land; the burden then shifts to the defendant to show that the trees were cut through accident, inadvertence, and mistake, provided that reasonable care and caution were taken to avoid the mistake. Keirn v. Warfield, 60 Miss. 799.
This means nothing more or less than the question "Was the timber cut by the defendants in good faith?" The question of good faith is one for the jury. Haley et al. v. Taylor, 77 Miss. 867, 28 So. 752, citing with approval Clark v. Field, 42 Mich. 342, 4 N.W. 19.
The jury had the facts, and found from those facts that the defendants had not acted in good faith.
Argued orally by W.I. Stone and Fred B. Smith, for appellant, and by C.A. Bratton, for appellee.
Suit was brought by appellee against appellant and two others to recover the actual value of some 389 trees alleged to have been unlawfully cut and removed from property belonging to plaintiff. This value was placed at $164, and statutory damages were demanded, under Code 1930, Section 3411, in the additional sum of $5,835, making a total of $5,999. From a judgment in such sum only the lumber company appeals.
Plaintiff's title to the land involved was sought to be founded upon a deed describing the property as "West half of the Northeast Quarter of Section 33, Township 11, Range 2 West, less a ten acre strip across the West side of the Southeast Quarter of the Northeast Quarter, containing seventy acres more or less, etc." The lumber company based its right upon a timber deed covering a part of said section described as beginning at the south-west corner of the same property and "run East to a certain branch about 175 yards, thence up said branch a quarter of a mile, thence West to a line dividing the Northeast Quarter and Northwest Quarter of Section 33, thence South with said line to the point of beginning." These two descriptions overlap to the extent of a strip of land one-fourth mile long lying west of the branch referred to, and containing approximately 5.91 acres.
The respective record chains of title run back over a period of from thirty to forty years but no common source is shown. We cannot say that either has the better record title. The parties, evidently aware of this situation, undertook to establish title by adverse possession. The testimony on this issue is far from satisfactory and we shall not seek to outline it. Let it suffice that it was sufficient to raise an issue of fact and we are content to allow the finding of the jury to stand. This view recognizes plaintiff's right to recover at least the actual value of the trees cut.
Statutory damages for such cutting may be allowed only when the proof shows that the cutting was willful. This implies both knowledge and intent or a degree of recklessness so gross as to constitute willfulness. Mere mistake or carelessness is not enough. Here each claimant justified his rights by the recitals in their respective deeds. Neither was then aware of any prior history of the land upon which title by prescription could be sought. Upon protest by plaintiff, the defendant desisted from further cutting beyond the line claimed by plaintiff, until the calls of the company's deed could be verified by a competent survey. When the survey was had, the defendant returned and justified its resumption of cutting by what it honestly believed was an ample assurance of its title. Indeed, both parties exhibited their deeds and depended solely upon their recitals. After the survey, plaintiff impliedly conceded some merit in defendant's claim by moving his saw mill at the request of defendant's grantor, and desisting from further cutting on the disputed strip, alleging that he "didn't want to trespass on any one." In view of the unsatisfactory evidence as to establishment of the title to the land itself, it is seen that there was sufficient justification for claim by either party, and in the absence of clear proof, measured by standards which must be invoked in adjudging liability for so drastic a penalty, it cannot be said that a reasonable exercise by either of his asserted rights could be held to be willful. Each voiced a protest to the other and such other responded thereto in a manner which precludes any imputation of deliberate design. Defendant resumed its cutting only after what it plausibly considered was a verification by survey of the calls of its deed. Its record title was at least as good as that of plaintiff.
The jury resolved the doubtful issue of prescriptive title in plaintiff and he is therefore entitled to his actual damages. A careful assay of the entire testimony reveals no basis for imposition of the severe statutory penalty. Defendant's instructions requiring the exclusion of this issue from the case should have been granted. A verdict in the sum of $164 only is justified. If appellee will enter a remittitur down to that sum, the judgment will be affirmed in that amount; otherwise it must be reversed and the cause remanded, for hearing on the issue of damages alone.
Affirmed with remittitur.
In view of the testimony to the effect that after the defendant became advised that the parcel of land from which the timber was cut was likewise within the calls of the recorded deed held by the plaintiff, and that the defendant was forbidden to cut the timber and was shown the marked boundary line up to which the plaintiff claimed, it then had no right to go later upon the land and cut and remove the timber when the record disclosed that the plaintiff had at least as good a title thereto as did the defendant, and which the jury found to be the better one on the issue of adverse possession, I am of the opinion that it was a question for the jury to determine whether under such circumstances punitive damages should have been allowed.