Averett v. Brady

• Decision Date: 30 June 1856
• Docket Number: N0. 93.
• Citation: 20 Ga. 523
• Parties: Matthew AverETT, plaintiff in error. vs. Kendrick M. K. Brady, defendant in error.
• Court: Georgia Supreme Court

20 Ga. 523

Matthew AverETT, plaintiff in error. vs. Kendrick M. K. Brady, defendant in error.

N0. 93.

Supreme Court of the State of Georgia

JUNE TERM, 1856.

Complaint in Ejectment, in Stewart Superior Court. Decided by Judge Kiddoo, April Term, 1856.

An action was instituted by Kendrick M. K. Brady against Matthew Averett, to recover lot of land No. 82, in the 22d district of Stewart County, and lying on the Chattahoochee river. The case came on for trial at April Term, 1856, of Stewart Superior Court, when the plaintiff introduced the following evidence:

1st. A copy of the plat and grant from the State of Georgia to Nathan Brady to the lot in dispute, having first shown the loss of the original.

2. Geo. J. Lunsford testified, that plaintiff was the only child of Nathan Brady, deceased, and that he was born in 1829 or 1830; thinks in 1829, but does not recollect the month.

3d. William R. Collier testified, that defendant was in possession of the premises in dispute in 1853, in the following manner: He had a negro cabin on said lot, and was in possession using the banks of the river in the management and employment of a ferry boat for the transportation of passengers across said river; that his ferryman lived in said cabin. He further testified, that the annual value of said lot to defendant whilst he occupied it, was worth about $1,000.

4th. William Carter testified, that defendant went into possession in the spring of 1843, and was in possession when the suit was brought; that the income of said ferry was about $1,000 per annum, and the expenses in keeping it up were from $200 to $300 per annum; that in 1839 defendant was in possession of a house on said lot of the annual value of from $100 to $150; also, a cabin worth $15 or $20; that he also had in possession the ferry landing, which was worth but little, except for a ferry landing; that the ferry landing was about thirty feet from the old bridge, and that a road led from the end of one of the public streets of the town of Florence to the old bridge, which had been used as a public highway from 1843 until this suit was brought; that defendant had opened and used a way to the landing, and had used and exercised acts of ownership over no portion of said lot, except said house, the negro cabin and the ferry landing; that the remainder of said lot was controlled by other persons. Witness further testified, that Nathan Brady died in 1836.

Plaintiff closed, and defendant introduced no evidence.

The Court charged the Jury that if, in their opinion, the plaintiff had proved title in himself, they ought to find in his favor the premises in dispute, and a reasonable rent for the house and ferry landing according to the testimony; that in estimating the rent of the landing, they might take into the account the proceeds of the ferry, and deduct the expenses of fitting up and carrying on the same, making due allowance for all risks and expenses; and that as a landing on the other side of the river was necessary to carry on the ferry, it might be equitable (as plaintiff's Counsel conceded) to allow only half the net proceeds as rent for the landing on this side of the river; and further, that they should consider this as all other cases of rent.

By request of defendant's Counsel, the Court further charged, that the bed of the river belonged to the State of Georgia.

Defendant's Counsel then requested the Court to charge, that the right of ferry over said river was a franchise belonging to the State of Georgia; that none could rightfully exercise the same without a grant from the Legislature; and that no rent was due the plaintiff for the use of that which did not belong to him as a riparian proprietor. The Court did not give this request in charge, and defendant excepted and assigns such refusal to charge as error; and also, that portion of the charge given instructing the Jury, "that in estimating the rent of the landing, they might take into the account the proceeds of the ferry after deducting the expenses of fitting up and carrying on the same, and making due allowance for all risks and expenses."

The Jury found for plaintiff with $4,924 mesne profits.

B. K. Harrison; Hines Holt, for plaintiff in error.

Tucker & Beall, for defendant in error.

By the Court.— McDonald, J., delivering the opinion.

There are two assignments of error in this case:

1st. That the Court erred in charging the Jury that in estimating the rent of the landing, they might take into the account the proceeds of the ferry, after deducting the expenses of fitting up and carrying on the same, and making due allowance for all risks and expense.

2d. That the Court erred in omitting to charge the Jury as requested to do by defendant's Counsel, in the midst of his argument before the Jury, that the right of ferry over said river was a franchise belonging to the State of Georgia, and that no one could rightfully exercise the same without a legislative grant; and that therefore, no rents were due the plaintiff for the use of that which did not belong to him as a riparian proprietor.

The record shows that there was no plea of any sort in the Court below, and that no evidence was submitted for the defendant except that which appeared in the plaintiff's case.

The plaintiff showed title in his ancestor; proved his death and claimed as heir at law. The suit was instituted on the 17th of April, 1853. The process bears that date. According to witness' belief, the plaintiff was born in 1829, but he could not state the month. The defendant, for aught that appears in the record, entered as a trespasser. He claimed no title. It does not appear that the plaintiff in error erected the ferry, or that there was no ferry there at the time the defendant took possession of the property. He opened and used a way to the landing, but it does not appear that there was no access to it but that made by defendant. The road opened by defendant was probably from the street which led to the bridge, which was but a short distance.

Was the charge of the Court right as to the mode of estimating the damages in this case?

In an action for mesne profits, in addition to other matters in relation to which this record presents no controversy between the parties, the plaintiff must prove "the value of the mesne profits, to be estimated by the amount of the crops taken, or by the fair annual value of the premises." (4 Phil, on Ev. 315.) The plaintiff proved by one witness the annual value of the land during the defendant's possession of it. By another witness he proved the yearly income of the ferry and the annual value of a house and negro cabin on the premises while the defendant occupied them. This witness proved the value of the hire of a ferryman and other expenses of keeping the ferry. The record shows no evidence on the subject of making the ferry and the risk of keeping it. The first witness speaks of the defendant's possession of the premises in May, 1853, but he mentions no time anterior to that, and says that he was in possession in the following manner, to wit: he had a negro cabin on said lot of land and was using and enjoying the banks of the river in the management and employment of a ferry boat across the river, &c. He speaks of the ferry as a thing in operation and then used and enjoyed by the defendant. The first mention made by the next only witness who testified of the ferry landing is, that the defendant had in possession the ferry landing, which was worth but little except for a ferry landing. He spoke of it as existing as a ferry landing at the date of the defendant's possession. The instructions given to the Jury under the facts disclosed in the record, are quite liberal enough for a trespasser who is not favored by the law. But suppose the evidence in this case had shown that the defendant erected the ferry; dug down the banks; constructed the flat and did everything necessary for operation, he would have been accountable before another tribunal pretty much as the Court charged the Jury in this case; he would have been accountable for what was actually made, deducting expenses, and additionally, for interest. The plaintiff was an infant at thetime of the defendant\'s entry, and the latter was liable to account to him as guardian. If he had been his regularly appointed guardian, and had used his ward\'s property as his own, he would have been accountable for all lie made by it and the interest. Having gone into possession and used it, not having been guardian, he \'was accountable, notwithstanding, and could not defend by showing that he was not guardian. In such case, he would have been accountable as bailiff or guardian. (2 Peer. Wms. 645. Drury vs. Conner, 2 Harris & Gill, 227.) One of the witnesses testified that the annual value of the lot of land to the defendant, during his occupation of it, was one thousand dollars; the other testified that the annual income of the ferry was about one thousand dollars. We think there was no error in the Court\'s instructing the Jury that in estimating the rent 6f the land, they were at liberty to take into the account the proceeds of the ferry, after making the deductions mentioned by him.

The verdict of the Jury shows that they did not find the full amount of the value of the rents of the houses and one half the ferry made, after deducting expenses, &c, &c. They considered, no doubt, the net proceeds of the ferry as a criterion of value in estimating the rent. The...