Knight v. Empire Land Co.

• Decision Date: 29 January 1908
• Citation: Knight v. Empire Land Co., 55 Fla. 301, 45 So. 1025 (Fla. 1908)
• Parties: KNIGHT v. EMPIRE LAND CO.
• Court: Florida Supreme Court

45 So. 1025

55 Fla. 301

KNIGHT v. EMPIRE LAND CO.

Florida Supreme Court

January 29, 1908

In Banc. Error to Circuit Court, Citrus County; R. McConathy Referee.

Action by the Empire Land Company against Robert J. Knight. Judgment for plaintiff, and defendant brings eror. Affirmed.

Syllabus by the Court

SYLLABUS

In Florida, where the production of spirits of turpentine and rosin, otherwise known as 'naval stores,' constitutes one of the leading industries, the courts will take judicial notice of the fact that such naval stores are the manufactured products of the gum extracted from pine trees that constitute the chief timber growing upon large areas of said state, and that the crude gum so extracted, in its unmanufactured state, is popularly known as, and called 'dip,' from the fact of its being collected by being dipped up from receptacles, called 'boxes,' cut into the growing pine trees near the ground.

Interrogatories seeking discovery under the provisions of section 1534, Gen St. 1906 (section 1116, Rev. St. 1892), are properly excluded: (1) When no person or persons are named therein to whom they are to be propounded; (2) when they seek to elicit testimony wholly irrelevant to any issue in the cause; (3) when they are merely of a fishing character, and seek exclusively for the case or proofs of the opposing party; (4) when the party has postponed the proposing thereof until the actual trial of the cause has been commenced; and when the propounding thereof will necessitate a postponement of such trial, except in an extraordinary case of necessity imperatively required by the demands of justice between the parties, being made clearly to appear after the party had clearly freed himself from any suspicion of laches in not proposing such interrogatories sooner.

Where a defendant interposes the plea of the general issue, or other plea of like effect, that requires nothing more than the general similiter to complete a joinder of issue thereon, and goes into and through a full and final trial of the merits of the controversy embraced in the declaration and plea, without noticing the absence of such similiter, and without protest or objection to the trial because of its absence, he cannot afterwards avail himself of its absence as ground either for arrest of judgment, for new trial, or for reversal on appeal.

Evidence is properly excluded that has no relevancy to any issue in the cause.

A demurrer to evidence can be properly sustained only when there is no evidence for the plaintiff that authorizes any recovery whatsoever in his favor.

Where lands are trespassed upon, a party, to be entitled to sue and recover for such trespass, must have been the owner or in possession of such land at the time of trespass. If he does not acquire any ownership over or possession of the land until after the acts of trespass, he cannot recover damages therefor; and it is necessary in such cases for the plaintiff to show that at the time of the alleged trespass he was either the owner of the land trespassed upon or else in the actual possession thereof.

COUNSEL H. L. Anderson and H. M. Hampton, for plaintiff in error.

Hocker & Duval, for defendant in error.

OPINION

TAYLOR J.

The defendant in error, hereinafter referred to as the plaintiff sued the plaintiff in error, hereinafter referred to as the defendant, in the circuit court of Citrus county for damages for the wrongful conversion of certain marketable products tortiously taken from the pine timber growing on certain lands of the plaintiff, and for trespass upon said lands, and for damages for injury done to the growing timber upon said lands. The cause was referred to a referee for trial by consent of the parties, and such trial resulted in a judgment against the defendant for the sum of $567.88 and costs, and the defendant brings this judgment here for review by writ of error. The declaration filed by the plaintiff in the case was as follows:

'Empire Land Company, a corporation under the laws of the state of New Jersey, by its attorneys, Hocker & Duval, sues Robert J. Knight:

'(1) For that the defendant, upon divers days between the 15th day of January, 1904, and the 20th day of December, 1904, in Citrus county, Florida, converted to his own use or wrongfully deprived the plaintiff of the use and possession of the plaintiff's goods, that is to say, to wit, 1,000 gallons of spirits of turpentine and 5,000 pounds of rosin, of the value of, to wit, $1,000, and 200 barrels of dip, of the value of $1,000; and the plaintiff claims $2,000.

'(2) For that the plaintiff was on the 15th day of January, 1904, seised and possessed of the following described lands, situate in Citrus county, Florida, to wit: The N.W. 1/4 of the S.E. 1/4 and the S.E. 1/4 of the S.E. 1/4 of section 30, that part of the N. 1/2 of section 32 lying west of the Withlacoochee river, all in township 17 south, range 20 east, and the W. 1/2 of the E. 1/2 and the N.E. 1/4 of the N.E. 1/4 of section 6, Tp. 18 south, range 20 east--and while the plaintiff was so seised and possessed of said lands the defendant on divers days between the 15th day of January, 1904, and the 20th day of December of said year, unlawfully and willfully and without the consent of the plaintiff entered upon said lands, and unlawfully and willfully and without the consent of the plaintiff boxed and chipped for turpentine purposes certain pine trees and saplings growing upon said lands, the property of the plaintiff, whereby the said pine timber was greatly damaged and injured, and the plaintiff sustained great loss and injury; and the plaintiff claims $2,000.

'(3) For that the plaintiff was on the 15th day of January, 1904, seised and possessed of the following described lands situate in Citrus county, Florida, to wit: The N.W. 1/4 of the S.E. 1/4 and the S.E. 1/4 of the S.E. 1/4 of section 30, that part of the N. 1/2 of section 32 lying west of the Withlacoochee river, all in township 17 south, range 20, and the W. 1/2 of the E. 1/2 and the N.E. 1/4 of the N.E. 1/4 of section 6, Tp. 18 south, range 20 east--and while the plaintiff was so seised and possessed of said lands the defendant, his agents, servants, or employés, between the 15th day of January, 1904, and the 20th day of December of said year, unlawfully and willfully and without the consent of the plaintiff entered upon said land, and unlawfully and willfully and without the consent of the plaintiff boxed and chipped for turpentine purposes certain pine trees and saplings growing upon said lands, the property of the plaintiff, whereby the said pine timber was greatly damaged and injured, and the plaintiff sustained great loss and injury; and the plaintiff claims $2,000.'

To this declaration the defendant interposed the following demurrer:

'Comes now the defendant in the above-styled cause and demurs to the plaintiff's declaration herein, and for grounds of demurrer shows to the court:

'(1) That the said declaration is insufficient in law to be plead unto.

'(2) That in and by said first count the plaintiff has not set out with sufficient certainty the property alleged to have been converted to the defendant's use.

'(3) The first count of said declaration is framed in the alternate and attempts to set out two separate and distinct causes of action.

'(4) It is uncertain from said count what property it is claimed the defendant converted.

'The defendant further demurs to the second and third counts of the said declaration on the ground:

'(1) That the same cause of action is set out in both second and third counts of said declaration.

'(2) That both said second and third counts set forth two separate and distinct causes of action in the same count.

'Wherefore defendant prays judgment of this court whether he will be required to plead to said declaration.'

This demurrer was overruled, and such ruling constitutes the first assignment of error.

The only contention here in support of this assignment is that the first count of the declaration, in charging that the defendant wrongfully converted to his own use of the plaintiff's goods '200 barrels of dip, of the value of $1,000,' is vague and indefinite, and does not so describe what goods were so converted as to advise the defendant of what goods he is charged with converting. There is no merit in this contention.

In Florida, where the production of spirits of turpentine and rosin, otherwise known as 'naval stores,' constitutes one of the state's leading industries, the courts will take judicial notice of the fact that such naval...