H. D. Williams Cooperage Co. v. Clark

• Decision Date: 21 October 1912
• Citation: 150 S.W. 568
• Parties: H. D. WILLIAMS COOPERAGE CO. v. CLARK.
• Court: Arkansas Supreme Court

150 S.W. 568

H. D. WILLIAMS COOPERAGE CO. v. CLARK.

Supreme Court of Arkansas.

October 21, 1912.

Appeal from Circuit Court, Cleburne County; George W. Reed, Judge.

Action by J. E. Clark against the H. D. Williams Cooperage Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee brought suit against appellant for treble damages for the unlawful cutting and removing of certain timber from his lands. It was alleged that it unlawfully and willfully entered upon his lands in June, 1911, and cut and removed 28,456 feet of white oak timber therefrom, of the value of $300, and damaged and caused a waste of other timber growing thereon of the value of $200, and prayed judgment for treble damages. The appellant admitted appellee's ownership of the lands, and that its employés entered thereon and cut and removed 19,773 feet of timber, denied that it cut the amount claimed by appellee, and that it was of the value as alleged by him, and that it caused any damage or waste to the other timber standing thereon. It denied that it unlawfully and willfully entered upon the lands, and cut and removed the timber therefrom, and alleged that it was done by its employés without its knowledge and consent, and that only 19,773 feet of timber was taken.

The testimony tends to show that appellant's employés cut 58 oak trees on the lands of appellee which stood along a road, and were within about half a mile of the switch on the Missouri & North Arkansas Railroad in easy hauling distance thereof, that the trees would run from 15 to 30 inches in diameter, and were long bodied, and that some of them were more than 30 inches. Appellee and two others testified that they scaled the timber, and it amounted to 28,456 feet. He stated that the fair market value of it was $235. It was also testified that the trees could be cut into logs for $1 per thousand, hauled to the railroad for $2, and, when delivered there, were worth from $24 to $36 per thousand feet. There was also testimony to the effect that timber not taken was damaged to the extent of $75. One witness testified that he saw Clarence Jones, the foreman of appellant company in charge of the gang when they were cutting the timber, and told him it was on the Clark land, and he said it did not make any difference. There was other testimony tending to show that the timber was cut by mistake, and that as soon as Sam Giddon, another employé of the company, was notified, he immediately stopped the cutting of the timber. The testimony on appellant's part tended to show that only 19,773 feet of the timber was taken from the lands, and that $3 per thousand feet was a good price for the standing timber. No survey of appellant's lands adjoining the lands of appellee from which timber was cut was made prior to the cutting of his timber.

The court gave three instructions, "to the giving of which the defendant objected and excepted, and had its exceptions noted of record." It refused the three asked by defendant. The jury assessed the damages at $775, and from...