Cooper v. Langway

• Decision Date: 04 February 1890
• Citation: 13 S.W. 179
• Parties: COOPER <I>v.</I> LANGWAY.
• Court: Texas Supreme Court

13 S.W. 179

COOPERv.

LANGWAY.

Supreme Court of Texas.

February 4, 1890.

Commissioners' decision. Appeal from district court, Houston county; F. A. WILLIAMS, Judge.

Cooper & Moore, for appellant. Munn & Denny, for appellee.

ACKER, J.

Sam Langway sued L. W. Cooper to recover damages for malicious prosecution. The damages were laid at "five thousand dollars, — two thousand actual, and three thousand exemplary." The defendant answered by general and special exceptions, specially denied malice, and specially pleaded the facts relied on to show probable cause for the prosecution of plaintiff. The exceptions were overruled, and the trial by jury resulted in verdict and judgment for plaintiff for $50 actual, and $50 exemplary, damages. It was proved that a first-class public road was laid out and opened by proper authority on defendant's land, and at his request; that in opening the road six or eight trees were left standing in the roadway, around which vehicles could pass; that these trees became dead, were in the way of the traveling public, and the limbs falling therefrom obstructed the roadway, and made it dangerous for persons passing; that the overseer of the road told plaintiff that if he would cut the trees, and remove them from the road, he might have the wood, and, under the authority of the overseer, plaintiff was cutting the trees when defendant came to him, and claimed them; that plaintiff told defendant that he was cutting the trees by authority of the road overseer, and defendant demanded of plaintiff eight or ten dollars in payment for the timber he had cut, which plaintiff refused to pay, and at once quit cutting the trees; that defendant went before a justice of the peace, and made affidavit charging plaintiff with cutting and carrying away timber of the value of five dollars from land of affiant, without his consent, knowing the land was not his; that this affidavit was filed in the county court, on which process was issued for the arrest of plaintiff, in which it was stated that the offense in the affidavit charged was theft; that plaintiff was arrested and confined in jail for about half of an hour, when he executed bond reciting that he had been arrested on a capias issued on an indictment returned by the grand jury on a charge of theft; that plaintiff was tried in the county court, and acquitted, on an information filed on defendant's affidavit. All of these facts were substantially set out in the petition, except the offense charged in the capias and bond was not stated, though it was averred that the capias issued on the affidavit made by defendant.

The first assignment of error presented is: "The court erred in overruling the defendant's general exception to plaintiff's petition, because there was no cause of action set up in said petition; the said petition showing said timber cut and appropriated to be on defendant's land." Under this assignment it is contended that by laying out and opening the road the public acquired only an easement in the land, — that is, the right to use it for purposes of a public road; but, subject to this right, the land, and the timber growing upon the road-way, remained the property of defendant. The correctness of this proposition might be conceded, and yet the plaintiff may not have been guilty of the offense charged in the defendant's affidavit against him. Something more than cutting timber on the land of another without the consent of the owner is necessary to constitute the offense denounced by article 697 of the Penal Code, for which plaintiff was prosecuted. Such cutting must be knowingly done; that is, done with knowledge and understanding of facts that the land belonged to another, and that he had no right or authority to cut the timber. If the party accused in good faith believed he had the right to cut the timber, he would not be guilty of the offense. Lackey v. State, 14 Tex. App. 164. If the timber standing upon the road-way obstructed or impaired the use of the road by the public, it was the duty of the overseer of the road to have it removed, and the overseer's authority was sufficient to protect the plaintiff against all criminal liability. We believe the authorities sustain the doctrine contended for by appellant, and have no doubt he might recover, in a civil action, the value of timber cut and converted from the land on which the road-way was situated, unless such cutting was done, by authority of the overseer of the road, for the purpose of opening or improving the road. Phifer v. Cox, 21 Ohio St. 248; Cole v. Drew, 44 Vt. 49; Barclay v. Howell's Lessee, 6 Pet. 498; Robert v. Sadler, 104 N. Y. 229, 10 N. E. Rep. 428; Milling Co. v. Bennett, 18 S. C. 254. We do not think the court erred in overruling the general exception to the petition.

The second assignment of error is: "The...