Koontz, Phillips & Stamm v. Mylius
| Decision Date | 25 January 1916 |
| Parties | KOONTZ, PHILLIPS & STAMM v. MYLIUS ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 18, 1916.
Syllabus by the Court.
Where the issues involved in an action have been previously decided by a court of competent jurisdiction, in another suit between the same parties, such issues are res judicata, and the parties are thereby estopped from controverting them.
Where there is a conflict in the boundary lines of coterminous landowners, and one of them seeks, by bill in equity, to enjoin the other from cutting and removing the timber from the disputed area, and on full hearing the preliminary injunction previously awarded is dissolved and plaintiff's bill dismissed, and he thereafter sells the timber on the disputed land and his vendee severs and removes it, he is estopped, in an action of trespass against him by the defendant in the injunction suit, to deny the title of the latter, unless by his subsequent acts or declarations respecting the matters in issue such defendant has caused him to be misled to his injury, or, in other words, unless his subsequent actions or statements amount to an estoppel upon him.
Incorrect information, innocently given, and without any purpose to deceive, by one of such parties to the other or to his agent respecting the description of his boundary line, although believed as true and acted on by such other, does not amount to an estoppel, unless the party relying thereon is misled thereby to his injury.
If the attorney for the defendant does not announce his purpose to submit the case to the jury without argument until after the attorney for plaintiff has concluded his opening argument, and he then declares such purpose, it is no abuse of discretion for the trial judge to permit plaintiff's attorney to make a second argument to the jury.
The court may permit the jury to take to their room, when they retire to consider of their verdict, any paper read in evidence before them; and, at the request of the jury or any one of them, it may allow a paper to be read to them a second time, and any juror has the right to make notes therefrom when it is so read.
Error to Circuit Court, Randolph County.
Action by Koontz, Phillips & Stamm, partners, etc., against Charles E. Mylius and others. Judgment for plaintiff, and defendants bring error. Affirmed.
See also, 69 W.Va. 621, 73 S.E. 319.
W. B. & E. L. Maxwell, of Elkins, for plaintiffs in error.
Samuel T. Spears, of Elkins, for defendant in error.
WILLIAMS P.
Jacob Koontz, E. F. Phillips, and John Stamm, partners trading as Koontz, Phillips & Stamm, recovered a judgment against Charles E. Mylius in an action of trespass for the cutting and removing of timber from land claimed by them, and defendant brings error. The alleged trespass was committed by defendant's vendee, the Demp-Bell Lumber Company, a corporation, which was sued jointly with Mylius. It was not served with process, and judgment was recovered against Mylius only.
Numerous errors are assigned. The one chiefly relied on is the rejection of defendant's special pleas Nos. 2 and 3 alleging certain facts which defendant's counsel insists operate as an estoppel upon plaintiffs. This suit is an aftermath to the suit of Mylius v. Koontz et al., appealed to this court, and decided in 1911, and reported in 69 W.Va 621, 73 S.E. 319. That suit was between the same parties, and the issue there involved was the right of these plaintiffs to cut and remove the timber from certain lands conveyed to them by T. J. Arnold and others, and it was there held that Mylius, the plaintiff in that suit, defendant in this, was estopped to deny the right of Koontz, Phillips, and Stamm to the timber on the land so conveyed to them. The present action is to recover the value of a portion of the same timber, cut and removed since that time by Mylius' vendee, the Demp-Bell Lumber Company. It, therefore, follows that the former decision is res judicata respecting plaintiffs' right to the timber, and, consequently, of their right to recover for the cutting and removing thereof by Mylius' vendee, unless they are estopped by their conduct or representations, performed or made since that time, to claim the benefit thereof; in other words, unless there has been a waiver by them of the estoppel, or an estoppel upon an estoppel. The special pleas aver that Mylius did not know the location of plaintiffs' lines upon the ground, and so informed his vendee at the time he sold to it, and told its agents and servants to ascertain from plaintiffs the location of their lines, and to cut no timber beyond them; that at the time the servants and agents of his vendee were engaged in cutting timber near the land in question they went to plaintiffs for the purpose of ascertaining their line, and were told by them that their line was painted red; and that they did cut the timber up to a line painted red, which they took to be plaintiffs' outside boundary line, and did not cut any timber beyond that line. It is averred that defendant and his vendee relied on that statement as true, and acted accordingly, and that plaintiffs are therefore estopped to claim damages on account of any timber cut from land not within the lines painted red. The land on which the alleged trespass was committed is a triangular piece, containing 21 acres, and lying at the apex of a triangular tract of 55 acres, which was originally a part of a 228-acre tract. The 55-acre tract, later ascertained to contain 59 acres, is a part of the land conveyed to plaintiffs by T. J. Arnold and others, and is within the boundary lines of the deeds. But the eastern boundary line of the triangle, which lay next to defendant's land, was blazed, but not painted, whereas its western line was in fact painted red; and it is proven that no timber was cut beyond the red line of the triangular tract. Mr. Stamm admits he told Harper and Potter, employés of the Demp-Bell Lumber Company, that their eastern boundary line was painted red. Stamm was the member of the firm in charge of the mill operations, but he was not along with the surveyor when the lines were run and painted, and therefore did not in fact know that the eastern boundary line of the triangle was not painted. He received the impression from his partner Phillips, who did accompany the surveyor and painted the lines, that the whole of their outside eastern boundary line had been...
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