82 S.E. 1049 (S.C. 1914), 8962, Ellerbe v. Marion County Lumber Co.

Docket Nº:8962.
Citation:82 S.E. 1049, 99 S.C. 158
Opinion Judge:GAGE, J.
Party Name:ELLERBE ET AL. v. MARION COUNTY LUMBER CO.
Attorney:M. C. Woods, of Marion, for appellant. L. D. Lide, of Marion, for respondents.
Case Date:October 03, 1914
Court:Supreme Court of South Carolina
 
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Page 1049

82 S.E. 1049 (S.C. 1914)

99 S.C. 158

ELLERBE ET AL.

v.

MARION COUNTY LUMBER CO.

No. 8962.

Supreme Court of South Carolina

October 3, 1914

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

[99 S.C. 160] 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."

Page 1050

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

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

GAGE, J.

[99 S.C. 167] 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...

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