Clay v. Postal Telegraph-Cable Co.

• Decision Date: 14 October 1892
• Citation: 70 Miss. 406,11 So. 658
• Court: Mississippi Supreme Court
• Parties: J. J. CLAY v. POSTAL TELEGRAPH-CABLE CO

11 So. 658

70 Miss. 406

J. J. CLAY v. POSTAL TELEGRAPH-CABLE CO

Supreme Court of Mississippi

October 14, 1892

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

The appellee, the Postal Telegraph-Cable Co., constructed its line of telegraph across the state of Mississippi, following the public highways. Before entering the county of Hinds, in December, 1890, it obtained an order of the board of supervisors granting it the right to erect its poles and construct its line along the public highways in said county and, whenever necessary, "to cut, trim and remove any trees, limbs or other obstructions in the way of same, upon the margin or within the width of said highways." The work of clearing the right of way thus secured, and of erecting the poles and stringing the wires, was done by a force of laborers under the superintendence of one Fisher. It was shown that Fisher had been instructed and cautioned not to invade private property, or to cut or trim any timber or growth of any kind on lands adjoining the granted right of way, without permission of the owners, and this order had been communicated by Fisher to the laborers employed by him.

While the laborers were engaged in clearing the route and stringing the wires along the public highway from Jackson to Clinton they cut down many small trees on land of the plaintiff Clay, which bordered the road. There was considerable conflict in the evidence as to the character and size of the trees cut, the witnesses for the defendant testifying that they were so small as to be nothing more than bushes or shrubs, while witnesses for the plaintiff testified that some of them were six or eight inches in diameter, large enough for posts, rails or fire-wood. The trees so cut were not within the actual roadway as laid out and used, but were growing along the roadside, some of them being within fifteen feet of the center of the road, which was of varying width.

On the day in question the superintendent, Fisher, was not with the laborers, but had remained in Jackson to superintend the removal of the camp and outfit to Clinton by rail, and the gang of laborers, numbering twenty-five or thirty, were sent on by him to prepare the route and construct the line to Clinton. He appointed no one to act in his absence as superintendent or foreman, but had generally, when absent intrusted to one of the more intelligent of the laborers the duty of seeing owners of lands as their places were reached, and getting permission to enter and cut trees.

This action was brought by Clay against the Postal Telegraph-Cable Co. to recover $ 1,725, the penalty given by § 961, code 1880, for the unlawful cutting of said trees, being $ 15 each for oaks, and $ 5 each for all others alleged to have been cut on plaintiff's land.

On the trial, the court granted, among others, the following instructions for defendant:

"2. The court instructs the jury for the defendant, that if they believe from the evidence that the trespass complained of by the plaintiff was committed by the laborers in the service of defendant while under the supervision of its agent, Peter Fisher, without the knowledge of said Fisher, and against his positive instructions to them not to cut any trees, limbs or brush along the line or upon the margin of any highway while erecting their telegraph line, and, in his necessary absence, without first obtaining the consent of the abutting property-owners, then they will find for the defendant."

"4. If the jury believe from the evidence that the defendant, at the time of the commission of the trespass complained of in plaintiff's declaration, was constructing its telegraph line along the public highway leading from Jackson to Clinton, by authority of the board of supervisors, and, pursuant to said authority, cut down trees, shrubs, undergrowth or saplings which were upon the line or within fifteen feet from the center of said road, then they will find for the defendant.

"5. If the jury believe from the evidence that the trespass complained of by the plaintiff was not the cutting down of trees growing on his land, but of shrubs or undergrowth growing upon the margin of the public highway, along which defendant was at the time constructing its telegraph line, even though they may believe from the evidence that such cutting was done upon the lands of plaintiff, they must find for the defendant."

There was a verdict for defendant. Judgment accordingly, and, after motion for new trial overruled...