Ellerbe v. Marion County Lumber Co

• Decision Date: 03 October 1914
• Docket Number: (No. 8962.)
• Citation: 99 S.C. 158,82 S.E. 1049
• Court: South Carolina Supreme Court
• Parties: ELLERBE et al. v. MARION COUNTY LUMBER CO.

82 S.E. 1049

(99 S.C. 158)

ELLERBE et al.

v.MARION COUNTY LUMBER CO.

(No. 8962.)

Supreme Court of South Carolina.

Oct. 3, 1914.

Appeal from Common Pleas Circuit Court of Marion County; T. H. Spain, Judge.

Action by Henry I. Ellerbe and others against the Marion County Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Paragraph 6 of the complaint was as follows:

"(6) That under the terms of the said deed, the said Cape Fear Lumber Company, its successors and assigns, was given the right only to build, construct, and operate a railroad across the said land but that, in violation of the rights of the plaintiffs, and over their protest, the defendant, during the time it carried on its timber operations upon the said land, not only built one line of logging railroad across the said lands of the plaintiffs, which was all it was entitled to under said deed, but willfully and wantonly constructed and operated a large number of tramways or spur tracks from said main line at short intervals of space, upon and across said tract of land, using therefor ways about 30 feet wide, and in the construction and operation of such tramways or spur tracks, cut down and destroyed all the small timber, undergrowth, brush, and shrubbery upon and along such ways."

M. C. Woods, of Marion, for appellant.

L. D. Lide, of Marion, for respondents.

GAGE, J. Action for malicious trespass. The defendant entered under a timber deed and cut the plaintiffs' trees. The right to enter and cut is not in dispute, but is admitted. The wrong alleged lay in a negligent and willful cutting, and in doing things not warranted by the deed. The defendant admits the commission of some wrong. So the only issue was how much damage was done. The verdict was $5,000, one-half of the sum claimed.

There are four exceptions by the defendant. One arises out of a construction of the deed; one arises out of the exclusion of testimony, two arise out of the admission of testimony. The 129 pages of printed testimony has no relevancy to the issues made by the exceptions, except the small portion thereof, referred to and quoted in the exceptions. The whole testimony ought not have been printed. Thereby a heavy and unnecessary burden has been put on the losing party. We are of the opinion that none of the exceptions are sound, and that the judgment ought to be affirmed.

The complaint alleged in the seventh paragraph that the defendant "injured and destroyed by its operations large quantities of the young timber on said land, which was not covered by its said deed, and the undergrowth, brush, and shrubbery thereon; that such injury and destruction were wholly unnecessary, and that it could have cut and removed with all reasonable convenience all the timber acquired by it under said deed without causing such injury or destruction." Had the defendant been ignorant of the instrumentality whereby the ' damage to the young timber was done, or had it desired a more particular statement of such instrumentality, a motion to make the allegation more specific was available to it If a trespasser enters and cuts timber with an axe or a saw, the pleader need not allege the instrument; it is sufficient to allege the wrongful act of destruction. Under the common-law system of pleading it was only necessary to charge that the defendant had entered by force and trampled upon the grass of the plaintiff, without any description of the instrumentalities that were used. The Code has not altered that rule. No more is it necessary to allege that the injury was done by that modern Moloch called a skidder.

The question which the defendant propounded to the witness Haseldon, and which the court held to be incompetent, was this: "Did they leave more timber on there oversize than they cut undersize?" The contention of appellant is that the plaintiffs had undertaken to prove that the land had been swept of all its tree growth, and that the question propounded to the witness was put to disprove that contention. It is true evidence would be competent which tended to show that all the timber growth had not been destroyed. And this witness, almost at the same moment, was allowed to answer this question: "Mr. Holt testified yesterday that everything of any value had been raked off of the land, small timber, large timber and all; is that true or not?" The witness answered: "It is not true." The defendant, therefore, got the benefit of the denial, in one form if not in another. The court, besides, only ruled that it was not competent for a trespasser to prove in mitigation of damages that, while he had cut trees he was not entitled to cut, he had left others which he was entitled to cut. Furthermore, by appellants' argument, "under the terms of the deed and the facts that were developed, we had until 1918 to cut,...