Deaderick v. Oulds

• Decision Date: 27 September 1887
• Citation: 5 S.W. 487,86 Tenn. 14
• Parties: DEADERICK v. OULDS.
• Court: Tennessee Supreme Court

5 S.W. 487

86 Tenn. 14

DEADERICK v. OULDS.

Supreme Court of Tennessee.

September 27, 1887

Error to circuit court, Washington county; NEWTON HACKER, Judge.

H. H Ingersoll, for plaintiff in error.

S. J Kirkpatrick and I. E. Reeves, for defendant in error.

LURTON J.

This is an action of replevin for the recovery of one walnut log. The defendant, Oulds, during the year 1883, cut and put in the headwaters of the Nollichucky river some 800 walnut logs, to be floated during the tides in the stream, through the gorge in the mountains, to a boom built by himself below the gorge. He undertook to have all of his logs branded with the letter "D," and, while the proof shows it possible that some of his logs were not so branded, yet there is no sufficient proof to justify a finding that any of his logs were unmarked. Many of defendant's logs failing to reach the boom, he, in 1885, sent hands up into the gorge to search for logs which might have lodged upon the banks of the streams, or upon rocks or drifts. These hands found a number of logs stranded upon rocks, or caught by drifts, which were branded with the mark of defendant. With some of these marked logs found entangled in a drift was found the log now in controversy, it being without any mark or brand. This log was claimed by the servants of defendant for him, and it was again set adrift along with the branded logs, that it might be carried by the currents to the boom of defendant below the gorge. This boom gave way before all these reclaimed logs reached it, and defendant was obliged to rely upon catching his logs upon the banks of the stream and islands below the broken boom. In December, 1885, this unbranded log, together with a marked one, were cast by the current upon an island in the stream belonging to plaintiff, Deaderick, who notified defendant, Oulds, not to remove it until he identified it as his own. Oulds did identify it, by peculiar cracks upon the end, as the same unmarked log found by his servants entangled in a drift within the gorge of the mountains, and placed by them in the river. He thereupon, claiming it as his own removed it from the island to the public road, where it was replevied by plaintiff. While the proof shows that, between the time defendant's logs were placed in the river and the finding of this unmarked log, no other person is known to have placed walnut logs in this river above the gorge to be floated down, yet it is shown that in 1883 one Wilson, who had cut walnut logs to be sawed on his own premises above the gorge, lost, by a high rise, 30 unbranded logs, which had been carried down the stream. The contention of plaintiff Deaderick, is that this unmarked log is more probably one of Wilson's lost logs than one cut by Oulds, and that, as the log was found upon his lands, defendant cannot take the log therefrom, without proving that he himself is the true owner.

The proof fails to establish the log to be one cut by defendant, Oulds, but it does satisfactorily show that it is the one found by defendant's servants, and lodged in a drift within the mountain's gorge, and set adrift in the stream to be floated to defendant's boom below the gorge.

On these facts can the plaintiff recover? The claim of plaintiff rests upon the proposition that the log is a lost log, and that, being found upon his land, he can hold it against every one but the true owner. This claim is not well founded. This log was lost, and had been lost in all probability for two or more years, when found entangled among the rocks and drifts in the gorge by the servants of defendant. It was then claimed for defendant, and possession taken. This right of possession was not lost by the log subsequently drifting upon the land of plaintiff, and the defendant had a right to take and hold this log against all but the true owner, or one having a superior right of possession to that of the finder of lost property.

It is...