Hicks v. Mississippi Lumber Co.

• Decision Date: 22 February 1909
• Docket Number: 13,493
• Court: Mississippi Supreme Court
• Parties: MARY L. HICKS v. MISSISSIPPI LUMBER COMPANY

48 So. 624

95 Miss. 353

MARY L. HICKS v. MISSISSIPPI LUMBER COMPANY

No. 13,493

Supreme Court of Mississippi

February 22, 1909

FROM the circuit court of Clarke county, HON. ROBERT F. COCHRAN Judge.

Mrs Hicks, appellant, was plaintiff in the court below; the lumber company, appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court. The first count in plaintiff's declaration was for the statutory penalty for cutting trees on the land of the owner without his consent (Code 1906 § 4977), and the second count was for the value of the trees alleged to have been cut by defendant on plaintiff's land. The facts are clearly inferable from the opinion of the court.

Affirmed.

Ed. D Peirce, C. R. Gavin and Stone Deavours, for appellant.

It certainly ought to have been left to the jury to determine whether or not the defendant in cutting the trees on the plaintiff's land had acted in such manner as to subject itself to the payment of the statutory penalty. There was no suggestion of any dispute but what the appellee cut the trees; in fact the appellee admitted cutting the trees; there was no dispute but what the cutting was done on the appellant's land; there was no dispute but what the cutting was done within twelve months; therefore every element necessary to subject the appellee to the payment of the statutory penalty was either overwhelmingly proved or altogether admitted except the element of wilfulness or recklessness and want of permission.

The court instructs the jury for the defendant that the plaintiff cannot recover anything unless they believe from a preponderance of the evidence that the defendant cut the trees sued for, without permission, and then she can only recover the market value of said trees as shown by the evidence. This instruction is palpably absurd; it would deprive the plaintiff of recovering the value of her timber cut and removed from the land, although she had entered into contract with the defendant and the defendant had removed it by virtue of the contract, because it expressly announces that there could be no recovery by the plaintiff except it be shown that the cutting of the trees was without permission. It very adroitly omits to state whose permission is required in order to authorize the defendant to enter upon the plaintiff's land and cut the plaintiff's timber.

The power of attorney from Mrs. M. L. Hicks to Edward D. Peirce cannot, by any reasonable construction, be interpreted so as to authorize the said Peirce to permit the appellee, or any one else to build a railroad across the land mentioned in the declaration, or to cut the timber on the said land without compensation to the appellant; the powers conferred by the instrument are, "to sell, rent, lease, or incumber all any part of my said property, at such figures and upon such terms as to him may seem proper." There is no authority in this to the said attorney in fact or agent...