Grisham v. Hinton

• Decision Date: 28 May 1986
• Docket Number: No. 56042,56042
• Citation: 490 So.2d 1201
• Parties: Edward W. GRISHAM and Leslie J. Johnson v. Ada Bell HINTON, et al.
• Court: Mississippi Supreme Court

Page 1201

490 So.2d 1201

Edward W. GRISHAM and Leslie J. Johnson v. Ada Bell HINTON, et al.

No. 56042.

Supreme Court of Mississippi.

May 28, 1986.

John M. Deakle, Hattiesburg, for appellants.

Rex K. Jones, John M. Dunnam, Jr., Hattiesburg, for appellees.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

HAWKINS, Justice, for the Court:

Edward W. Grisham and Leslie J. Johnson have appealed from a decree of the chancery court of Perry County awarding Louin C. Foxworth and J.K. Hinton damages for having to defend Grisham's and Johnson's suit for trespass against them. Mrs. Ada Bell Hinton has appealed from the same decree awarding Grisham and Johnson actual and statutory damages for the wrongful cutting of trees.

We affirm Mrs. Hinton's appeal, finding a factual issue was presented both on actual and statutory damages, which the chancellor resolved in favor of Grisham and Johnson.

Because we find the trial court lacked the authority to award attorney's fees and trial expenses to Foxworth and Hinton, we reverse and render on the Grisham and Johnson appeal.

FACTS

Grisham and Johnson owned the west half of a section of land in Perry County (West Half of Section 9, Township 3 North, Range 9 West). Ada Bell Hinton and her husband J.K. Hinton owned, together with other land, a life estate in the Northeast Quarter of a section immediately West of the Northwest Quarter of Grisham's and Johnson's land (Northeast Quarter of Section 8, Township 3 North, Range 9 West). The fee simple remainder interest in this quarter section was vested in her son by a former marriage, Louin C. Foxworth. The dispute in this case arose over approximately six acres of land in the Northwest corner of Section 9, approximately 91 feet wide at its North end, and approximately twice that wide at its South end where the land bordered on a creek.

In 1978 Mrs. Hinton had their land surveyed by Leon Clifton, a county surveyor, who located their boundary line, including the coinciding line between the Hinton and Grisham/Johnson lands, and at the Northeast corner of their property (also the Northwest corner of the Grisham/Johnson property) he found a "wood stob." He also found tree blazes along the coinciding line. Mrs. Hinton was present when he located this line and corner. Unhappy with Clifton's survey, Mrs. Hinton hired another surveyor, Guy L. Walker, who ran the line and came to the same conclusion as Clifton.

Despite these two surveys, Mrs. Hinton removed the Northeast corner marker, and placed another metal and concrete marker approximately 91 feet to the East. In December, 1982, she entered into an agreement with Randy Malone to cut her timber and pulpwood, whereby he would be paid one-half the sales price on the timber cut, and Malone would pay her $12 per cord for pine, and $6 per cord for hardwood cut. Malone cut trees and timber in the disputed area. Mrs. Hinton pointed out the boundary to Malone where she had located it.

On June 25, 1983, Grisham obtained a temporary restraining order from the chancery court against Malone, the Hintons and Foxworth restraining them from cutting timber in the disputed area. On September 29, Grisham and Johnson filed a bill of complaint to quiet and confirm title, and also for actual and statutory damages for cutting the trees in the area. Foxworth was a resident of Arlington, Texas.

Mrs. Hinton filed an answer and a cross-claim. Foxworth and Hinton filed an answer, and also cross-claimed. In their cross-claim they alleged the plaintiffs had libelled them in the complaint, and that they had nothing to do with, and no personal knowledge of this cutting of the timber, all of which would have been known to the plaintiffs by proper investigation. They claimed damages, and also that they were entitled to attorney's fees for having to defend the trespass part of the suit asking for damages.

At trial it was agreed no dispute existed as to the record title. C.D. Johnson, a forester, testified as to the number of trees cut in the disputed area and damages.

The chancellor rendered an opinion finding that Malone and Mrs. Hinton were liable for actual damages in the amount of $7,200.25, and that Mrs. Malone was liable for statutory damages under Miss Code Ann. Sec. 95-5-3 in the amount of $30,130.00.

The chancellor dismissed the complaint against Foxworth and Hinton. He also found they were entitled to $2,250 under their cross-claim stating:

A. Cross-Plaintiffs J.K. Hinton and Louin C. Foxworth are entitled to judgment against [sic] the Plaintiffs/Cross-Defendants Grisham and Johnson, jointly and severally, for the sum of $2,250.00 actual damages.

The Court recognizes that J.K. Hinton and Louin C. Foxworth were proper and necessary parties to Plaintiffs' action insofar as that action pertained to quieting and confirming title and establishing the true boundary line between lands of the parties. However, the Court is convinced upon mature consideration of the entirety of the evidence and pleadings in this matter that had the Plaintiffs resorted to even a modicum of investigation, or even a slight consultation with these Cross-Plaintiffs, they would have almost instantly determined that these Cross-Plaintiffs had absolutely nothing to do with the timber cutting and, indeed, recognized as the true boundary line that which had been previously identified and located by the two surveyors. Instead, the Plaintiffs persisted in charging these Cross-Plaintiffs as co-actors with Ada Bell Hinton and Randy Malone in the trespass, needlessly caused these Cross-Plaintiffs to defend themselves through the entire trial as to those spurious charges, and then on the trial Plaintiffs did not offer one iota of evidence either directly or by inference to support the charges against these Cross-Plaintiffs. Upon the basis of the foregoing, the Court concludes that equity, good conscience, and justice require that these Cross-Plaintiffs have restitution for actual damages.

No appeal has been taken by Malone. Grisham/Johnson have appealed the court's awarding suit damages to Foxworth and Hinton; they have made no assignment of error or appeal from the chancellor's dismissing the complaint against Foxworth and Hinton, or dismissing the claim for statutory damages against Malone. Mrs. Hinton has also appealed the court's awarding damages against her.

ADA BELL HINTON'S APPEAL

Mrs. Hinton does not challenge the accuracy of C.D. Johnson's calculations of the actual and statutory damages. Her contention is that there should have been no award of statutory damages in any sum because she acted in good faith, under a sincere belief the surveyors were in error.

Miss.Code Ann. (1972) Sec. 95-5-3 authorizes penalty damages of $55 per tree of various listed species of trees, and $35 per tree of all others, which are cut down or destroyed, in addition to actual damages. The statute provides that the defendant may establish good faith as a defense. ¹ Mrs. Hinton was at the time of the trial in her 80s. Her basic contention was that, from many years experience, she was familiar with and knew the corner, and the surveyors she hired to locate their land boundaries were mistaken. Assuming arguendo, that Mrs. Hinton sincerely believed the surveyors were wrong, is this a "good faith" defense under the statute?

The answer is "No." It is not the belief she entertained, but whether or not the belief was warranted under the facts of the case which controls.

We note first that in order to make a prima facie case under the statute, the owner is only required to prove (1) that the timber belonged to him, and (2) that without his consent the defendant, his agents or employees cut it. The defendant then, as an affirmative defense, may establish good faith. Lochridge v. Hannon, 236 Miss. 687, 112 So.2d 234, 235 (1959).

We have addressed statutory damage claims in numerous cases: Nichols v. Stacks, 485 So.2d 1034 (Miss.1986); Seismic Petroleum Services, Inc. v. Ryan, 450 So.2d 437 (Miss.1984); Lochridge v. Hannon, supra; Strawbridge v. Day, 232 Miss. 42, 98 So.2d 122 (1957); Ginther v. Long, 227 Miss. 885, 87 So.2d 286 (1956); Hudson v. Landers, 215 Miss. 447, 61 So.2d 312 (1952); Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478 (1951); Pippin v. Sims, 211 Miss. 194, 51 So.2d 272 (1951); Howse v. Russell, 210 Miss. 57, 48 So.2d 628 (1950), opinion amended 210 Miss. 57, 49 So.2d 809; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523 (1942); E.L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So.2d 846 (1941); Seward v. West, 168 Miss. 376, 150 So. 364 (1933); J.H. Leavenworth & Son v. Hunter, 150 Miss. 245, 116 So. 593 (1928); Kiern v. Warfield, 60 Miss. 799 (1883).

In Rutland v. Corley, 287 So.2d 433, 434 (Miss.1973), we stated:

... the statute authorizing the penalty for cutting trees is highly penal and must be strictly construed. This Court has always been cautious in the infliction of the statutory penalty and will allow it only where the facts are well proved and where the testimony shows the trespass to have been wilfull, or the negligence so gross, or the indifference so real, or the lack of good faith so evident, as to be tantamount to wilfulness....

In Strawbridge v. Day, supra, we stated, p. 128:

The phrase "good faith," as used in a statute such as we have here, denotes honesty of purpose, freedom from intention to defraud or to deprive others of rights or property to which in equity and good conscience they are entitled. In order to avoid liability for the statutory penalty in a case of this kind the defendant is not required to prove freedom from negligence, but only that the trespass was not willful, or did not result from wantonness or recklessness....

Unfortunately, some of our cases have stated that mere carelessness or mistake is not enough to impose the penalty. E.L. Bruce co. v. Edwards, supra, 3 So.2d p. 847; Howse v. Russell, supra. Such language in and of itself is incomplete. Good faith requires that any person, before cutting trees,...