Koontz v. Mylius

• Court: Supreme Court of West Virginia
• Writing for the Court: WILLIAMS
• Citation: 87 S.E. 851,77 W.Va. 499
• Parties: KOONTZ, PHILLIPS & STAMM. v. MYLIUS et al.
• Decision Date: 25 January 1916

87 S.E. 851
77 W.Va. 499

KOONTZ, PHILLIPS & STAMM.
v.
MYLIUS et al.

Supreme Court of Appeals of West Virginia.

Jan. 25, 1916.

[87 S.E. 851](Syllabus by the Court.)

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, als-o, 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 there-

[87 S.E. 852]

fore 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, employes of the Demp-Bell Lumber Company, that their eastern boundary line was painted red. Stamm was the member of the Arm in charge of the mill operations, but he...