Peterson v. Polk

• Citation: 67 Miss. 163,6 So. 615
• Court: United States State Supreme Court of Mississippi
• Decision Date: 28 October 1889
• Parties: ERIC PETERSON v. ALICE H. POLK

6 So. 615

67 Miss. 163

ERIC PETERSON v. ALICE H. POLK

Supreme Court of Mississippi

October 28, 1889

October 1889

FROM the circuit court of Warren county, HON. RALPH NORTH, Judge.

Appellant Peterson, who had been engaged for several years in getting out staves along Big Black river in Warren and adjoining counties and shipping them to New Orleans, purchased timber on the Elmore place adjoining the plantation of Mrs. Polk the appellee, in said county. He applied several times to W L. Polk, the husband of appellee, who managed her plantation to buy certain white oak trees growing on the place suitable for making staves, and was refused. As the timbered land on the two places was adjoining, he asked Polk to run the dividing line. But Polk said this was unnecessary, and referred him to Stuart, an old colored man, who he said would point out the line. This old man lived on the Elmore tract, but cultivated land on both places, and was familiar with the lines. In declining to sell the timber Polk was emphatic, and he warned Peterson not to cut any of the trees on his land. Peterson applied to Stuart, who attempted to point out the boundary line, and, thereupon, starting at a designated corner, he ran a line, as he claimed, between the two places with a small pocket compass, making no allowance for the variation of the needle. This line he blazed out for the guidance of his men, and they cut no timber except west of it on the side of the Elmore tract. He was not a surveyor, and took only the precautions stated to fix the boundaries. The line as thus run was cast of the true line about one hundred yards. The appellant cut eleven valuable white oak trees on the land of Mrs. Polk and converted them into staves, which he placed on a barge in the river with a large number of other staves of like character. The appellee then learning for the first time that the trees had been cut on her land, sued out a writ of replevin for the seizure of five thousand staves, the estimated number made from her trees. As the particular staves could not be identified, a levy was made on five thousand of the common lot. The defendant gave bond for the forthcoming of the property according to the statute and proceeded to New Orleans, where he sold all the staves on his barge at an average of $ 176.68 per thousand of twelve hundred each. On the trial the plaintiff established her right to four thousand one hundred and nineteen staves.

The testimony for the plaintiff showed that the division line between the two places was plainly marked by an old fence row, and that this line was pointed out to Peterson, but there was conflict as to the last point. A map of the lands was introduced in evidence by plaintiff, but no survey of the premises had been made. The boundary line between the places had been established and recognized many years.

The testimony was not definite as to the cost of shipping and selling the staves in New Orleans. It was shown that the cost of cutting and hauling was about $ 5.50 per thousand, and that they were worth about $ 90 a thousand on the river bank. Defendant offered to show the value of the trees standing, but the evidence was excluded.

The court instructed the jury to find for plaintiff and assess her damages. As to the measure of damages, the following instruction was given at plaintiff's instance:--

"2. In assessing plaintiff's damages the jury must be governed by the following rule: that is, if the jury believe from the evidence that defendant cut plaintiff's trees by mistake and in good faith, believing that they belonged on land not plaintiff's, then the measure of the damages is the value of the staves made from the trees, less the costs of cutting and hauling and reducing the timber to staves. But if the jury believe from the evidence that the defendant wilfully and knowingly cut plaintiff's trees, or, knowing that he was near the line of plaintiff's land, negligently omitted to take such reasonable precautions as might have enabled him to ascertain whether or not they were plaintiff's trees, then the jury must assess the damages at the value of the staves at the time and place they were seized by the officer; and it makes no difference whether the particular staves levied on were made from the trees cut on plaintiff's land or not, if the jury believe from the evidence that the defendant mixed these up with many other staves of his own, and was unable to designate those made of plaintiff's trees, and the officer seized part of the whole mass thus constituted."

The first instruction asked by defendant was to the effect that the jury could only find for the plaintiff the market value of the trees, if they believe the defendant cut the trees through mistake.

The defendant's second and third instructions announced that the burden of proof was upon the plaintiff to show to the satisfaction of the jury that the staves in controversy were cut on her land, and that if this was not done, the verdict should be for the defendant. All of defendant's instructions were refused.

The jury returned a verdict in favor of plaintiff for four thousand one hundred and nineteen staves, valued at four hundred dollars, and judgment was entered accordingly.

Defendant made a motion for a new trial, which was overruled, and a bill of exceptions was taken embodying the testimony in the case, the substance of which is above stated.

Judgment affirmed.

Gibson & Bien, for appellant.

We were not present at the trial of this case, and must present our views from a careful reading of the record.

1. The first instruction which directed the jury to find for plaintiff was erroneous. Its meaning is that the jury should find for plaintiff as to each and all of the eleven trees. With a dispute as to the line, and without a survey, the court assumed that Polk's location of it. was correct, and that all the trees were cut on plaintiff's land. This should have been left to the jury. A dangerous tendency of the judges to invade the province of the jury is every day becoming more manifest.

Here the evidence was not definite and explicit enough to warrant the court in saying that all of the trees or any of them, or the staves made...