Opinion
No. 33301.
September 26, 1938.
1. TRESPASS.
In action to recover value of merchantable oak, hickory and pine timber cut and removed by defendants and converted to their own use, evidence was sufficient to raise question for jury concerning value of the pine timber cut and converted to defendants' use.
2. HIGHWAYS.
In landowner's action against highway construction contractors for value of timber cut from right of way on his land, declaration alleging that State Highway Commission had breached contract for conveyance of right of way, and that contractors cut timber and removed it for their use, notwithstanding their knowledge of landowner's claim thereto, without referring to any agreement between landowner and contractors, was not fatally variant from proof that contractors kept timber after cutting it pursuant to agreement whereby landowner was to have the timber.
3. COSTS.
Where plaintiff sued for $525 in circuit court but recovered only $40, and record did not contain a finding of judge that plaintiff had reason to expect to recover more than $200, plaintiff was not entitled to costs (Code 1930, sec. 494).
APPEAL from the circuit court of Alcorn county; HON. THOS. H. JOHNSTON, Judge.
Chester L. Sumners, of Corinth, for appellants.
Title to property is necessary to support trespass. The record and the proof shows clearly that the title to both the land and the timber had passed out of Wilson and that at the time of the alleged action he did not have title to either. Therefore, not having the title to the land or the timber he cannot maintain trespass for the wrongful cutting of the timber.
Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L.R.A. (N.S.) 916; R.R. Co. v. Belhaven Heights Co., 122 Miss. 190, 13 A.L.R. 560; Williams Co. v. Collins, 114 Miss. 882, 75 So. 689; Leavenworth v. Hunter, 150 Miss. 750, 117 So. 122.
The trial court erred in permitting the appellees, as plaintiffs, to prove liabilities and damages not set up in the declaration, and a different cause of action to the one alleged.
Section 568, Code of 1930; 21 R.C.L., page 445, sec. 9, and page 447, sec. 9; Pomes v. McComb City, 121 Miss. 425, 83 So. 636; Chism v. Alcorn, 71 Miss. 506, 15 So. 73; N.Y. Indemnity Co. v. Myers, 161 Miss. 784, 138 So. 334; State to use of Stanton v. Junkin, 172 Miss. 225, 159 So. 107.
The court erred in overruling the appellants' motion to require the plaintiff to be more specific.
The evidence does not sustain and support the declaration.
Fair Lbr. Co. v. Federal Land Bank, 158 Miss. 87, 128 So. 733; Smith v. Gulf M. N.R. Co., 158 Miss. 188, 129 So. 599.
The jury was left to speculation as to damages.
This court has repeatedly held that verdicts cannot be based upon conjecture.
Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; Y. M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; Burnside v. Gulf Ref. Co., 166 Miss. 460, 148 So. 219.
If the appellees were to be permitted to prove a cause of action not set up in the declaration, in the form of a breach of contract, it was a jury question to determine from the evidence and the circumstances surrounding, whether such a contract was actually made.
The court erred in taxing the cost against the defendants, the appellants. The verdict of the jury was for $40 and this is the amount of the judgment. The judgment assessed the cost against the defendants, but the judgment did not state that in the opinion of the trial judge that the plaintiff had reasonable grounds to believe that he would recover more than $200. A motion was filed to retax the costs and the same was overruled.
Section 494, Code of 1930; Gulfport Turpentine Co. v. Strickland, 115 Miss. 1, 75 So. 689.
Ely B. Mitchell, of Corinth, for appellees.
This suit, as disclosed by the record, is not based on a breach of contract between A.N. Wilson and his wife and the Highway Department; it is a suit based on the allegations set up in the declaration that the appellants cut, removed, and converted to their own use the merchantable timber reserved in the deed to the Highway Department by the appellees.
The legal sufficiency of the evidence to take the case to the jury is a question of law for the trial court. So, where there is no conflict in the evidence, whether the facts which it tends to establish constitute a defense is for the court and not for the jury.
64 C.J. 301, sec. 317.
A verdict should be directed for the plaintiff where there is no conflicting testimony and the evidence clearly shows the right of the plaintiff to a verdict, or the evidence reasonably admits of no other conclusion than the one claimed by the plaintiff, or there is no competent evidence tending to support a verdict for the defendant.
26 R.C.L. 1073, sec. 79; Watson v. M. O.R. Co., 89 Miss. 322.
Where the evidence clearly establishes the case for plaintiff and there is no contradictory evidence or evidence establishing a defense, a directed verdict for plaintiff is proper.
Gibson v. Wood Lbr. Co., 91 Miss. 702; Bolding v. Red Snapper Sauce Co., 79 Miss. 785; Y. M.V.R. Co. v. Pittman, 169 Miss. 667; Fore v. I.C.R.R. Co., 172 Miss. 491; Fatherree v. Griffin, 153 Miss. 570; 26 R.C.L. 1080, sec. 83.
Counsel for appellants claimed that in order to maintain a suit for trespass it was necessary to prove both title and possession. It is admitted that the appellees owned one hundred acres of land on the south side of the Southeast Quarter of Section 36, Township 2, Range 8. Uncontroverted testimony of the witnesses shows that Wilson began to cut the timber on the right-of-way a few days after the deed was executed, long before the contractor ever came on the contract to work, and this timber was cut and snaked off the right-of-way onto the land of the appellee Wilson. The title of this timber was in the appellees; the possession of this timber was in the appellees.
A provision in a deed of real estate reserving certain described timber will be construed as an exception so that the title will not pass to the grantee.
Hicks v. Phillips, 146 Ky. 305, 47 L.R.A. (N.S.) 878; Finkbine Lbr. Co. v. Saucier, 150 Miss. 446; Harris v. Newman, 5 How. 654; Barkley v. Smith, 36 So. 449.
The measure of damages for the conversion of property is the value of the property at the time of the conversion with interest thereon from the taking to the time of the trial.
Ingram-Day Lbr. Co. v. Robertson, 129 Miss. 365; Bank of Forest v. Capital National Bank, 167 Miss. 163.
The pleadings where honest fix and determine the amount in controversy.
Finn v. Harrington, 54 Miss. 743; Jacobs v. Postal Telegraph Co., 76 Miss. 278.
The court in this case in its judgment held that the defendants, the appellants, were taxed up with the costs. The court was eminently correct in his holding. If the costs should be taxed up against the appellees, this would be the results: the defendants in the court below, the contractors, would get from the appellee Wilson at least eight or ten thousand feet of pine logs and five cords of hickory wood without paying anything for it whatsoever. The appellants tore down the fence of the appellees. After the appellees had constructed a new fence along the right-of-way line on his own land, he had to go back and rebuild this fence at his own expense, it would be unjust for him to have to pay the cost in this case because he was trying to get statutory penalty for the tearing down of his fence and the actual market value of the timber cut, removed and converted by the appellants.
The appellee, plaintiff in the court below, brought suit against B.G. Young, B.G. Young, Jr., and Louis Young, a partnership operating under the name of the B.G. Young Construction Company. It was charged that the plaintiff, A.N. Wilson, is the owner in fee simple of one hundred acres of land on the South side of the Southeast quarter of Section 36, Township 2, Range 8 in Alcorn county, Mississippi; that the plaintiff had entered into a contract to convey a strip of land as a right of way across the one hundred acres to the Mississippi Highway Commission, according to which contract he reserved the merchantable timber on the strip of land; but that when the deed was executed it was executed under a misrepresentation of facts; that the deed was delivered before he received the consideration expressed in the agreement; that when the check reached him the Highway Commission had breached its part of the contract, and he returned the check to the Mississippi Highway Commission, and had never received anything for the land. He further alleged that he asked B.G. Young, Sr., for a contract to clear the timber off the right of way, telling him at the time that he owned the merchantable timber on the said right of way, and wanted to remove it; that notwithstanding this knowledge the B.G. Young Construction Company, through its agents and employes, went upon the land, cut, deadened and removed 125 oak trees out of which lumber could have been manufactured, 2,000 feet of which had a market value at Corinth, the nearest market, of $50 per thousand; and the remainder of said oak timber could have been manufactured into 14,000 feet of timber, worth $20 per thousand in the local market; that the defendant, through his agents and employes, cut down 20 hickory trees, which when sawed up would have amounted to five cords of wood, worth $14 per cord, or the sum of $70; and that there were 112 pine trees of merchantable timber, which would yield 5,000 feet, at $15 per thousand. He further averred that the defendants, through their agent, cut and removed this merchantable timber from the land in question, for their own use, to the value of $525; and brought suit for that amount.
There was a second count to the declaration, but that disappeared from the case by an instruction of the court.
The testimony for the plaintiff was to the effect that he began cutting this merchantable timber, and removing it from the right of way, prior to the Young Construction Company, which had contracted with the State Highway Commission to open the road along the right of way, involving grading, moving timber, etc.; that the agent of B.C. Young Construction Company, in charge of the work as foreman, told plaintiff that he was cutting the timber too high, and that if he would let them cut it he could have the timber; in pursuance of which agreement they did cut and remove from the right of way the timber involved, estimated by plaintiff prior to cutting; and that after it was so cut and removed from the right of way the Young Construction Company refused to let plaintiff have the timber, ordered him not to move it, and itself moved it, or part of it, using it in the construction of some part of the road, to get the machinery to the job. He testified further that he could cut the timber, and move it to market for $3 per thousand. There was also testimony to show that defendants, in clearing the right of way, tore down a fence constructed within a few inches of the right of way line by plaintiff, and owned by him.
The court, in the trial below, held that the testimony with reference to the oak and hickory timber was too indefinite and uncertain, but submitted it to the jury, with instructions as to the pine timber, and there was a verdict for the plaintiff for $40; from which verdict this appeal is prosecuted.
The defendant had plead the general issue, and gave notice thereunder that plaintiff had sold the right of way to the Highway Commission, and was to cut and remove the timber prior to the contractor's going upon the right of way to begin work under his contract; and if the plaintiff had any right of action it was against the Highway Commission, and not against the defendants, against whom the plaintiff could not maintain suit, as they were not parties to the said contract.
On appeal it is contended that there is a departure from the declaration in the proof, and that the attention of the court was directed to this variance in the proper manner, and that the judgment should have been for the defendant because of this variance.
The court refused to sustain the motion on this count, and there was no effort to amend. We think the declaration was sufficient to support the judgment, on the proof in the record. It is alleged in the declaration, as above stated, that the defendants cut and removed the merchantable timber, and converted it to their own use, with proof that the timber belonged to the plaintiff. We think there was sufficient proof to show, or for the jury to find, the value of the pine timber cut and converted to the defendants' use; and there is no such variance as would be fatal to recovery by the plaintiff.
However, the suit was for $525, and there was a recovery for only $40. Under section 494, Code of 1930, the plaintiff is not entitled to costs where he sues for more than the amount necessary to confer jurisdiction on the Circuit Court, and recovers less than $200. Hence, the plaintiffs shall not recover any costs of the defendants, "unless the judge shall be of the opinion, and so enter on the record, that the plaintiff had reasonable ground to expect to recover more than $200.00, or unless the court shall have jurisdiction of the cause without respect to the amount in controversy." The judge did not find that the plaintiff had reason to expect to recover more than $200, and enter the same of record. In Gulfport Turpentine Co. v. Strickland, 115 Miss. 1, 75 So. 689, this Court held that such stipulation on the record by the judge was necessary to entitle the plaintiff to recover costs in such case.
The judgment as to the liability for, and recovery of, $40 is affirmed; but it was error to tax the costs against the defendants in this case, and that part of the judgment is reversed, and costs in the court below, as well as on appeal, are taxed against the plaintiff.
Affirmed in part, and reversed and rendered in part.