Leavenworth v. Hunter

• Decision Date: 07 May 1928
• Docket Number: 26818
• Citation: 150 Miss. 750,117 So. 122
• Court: Mississippi Supreme Court
• Parties: LEAVENWORTH et al. v. HUNTER. [*]

117 So. 122

150 Miss. 750

LEAVENWORTH et al. v. HUNTER. ^[*]

No. 26818

Supreme Court of Mississippi

May 7, 1928

Division B

1 TRESPASS. Complainants suing for cutting timber, both as to actual value and statutory penalty, must establish case by preponderance of evidence and with reasonable certainty.

In a suit for the value of timber wrongfully cut from lands belonging to the complainants, both as to actual value and as to statutory penalty, the complainants must establish the case by a preponderance of evidence and with reasonable certainty.

2. APPEAL AND ERROR. Disputed fact questions decided by chancery court, sufficiently supported by evidence, are binding on appeal.

Disputed questions of fact, when decided by the chancery court, are binding upon the supreme court, where there is sufficient evidence to warrant such decision.

3. VENDOR AND PURCHASER. Right of action for wrongfully cutting timber belongs to owner of land at time of cutting; right of action for cutting timber does not pass to grantee of lands after cutting, unless deed contains specific provision to such effect.

Where timber is wrongfully cut from lands belonging to a person or corporation, the right of action therefor belongs to the owner of the land at the time of the cutting, and such right of action does not pass to a grantee in a deed conveying such lands, unless the deed contains a specific provision to that effect. The purchaser takes the land, in the absence of a specific contract or provision, as it stands at the time of the conveyance.

4. TRESPASS. In trespass for wrongfully cutting timber defendant may show outstanding title in party claiming title and asserting right in case.

In a suit for trespass for wrongfully cutting timber from lands the defendant may show an outstanding title in the state, or in a private person or corporation, where such person or corporation claims the title to the land and asserts its right in such case.

HON. HARVEY MCGEHEE, Chancellor.

APPEAL from chancery court, First district, Coahoma county, HON. HARVEY MCGEHEE, Chancellor.

Suit by George and Mattie Leavenworth against C. W. Hunter and others. From a judgment for the defendants; complainants appeal. Affirmed.

Judgment affirmed.

Maynard, FitzGerald & Venable, for appellants.

Wassell Randolph, A. M. Coates, and Ed. Brewer, for appellee.

Argued orally by Geo. F. Maynard, Sr., and Geo. F. Maynard, Jr., for appellant, and Ed. Brewer, for appellee.

OPINION

ETHRIDGE, P.J.

This is a companion case to J. H. Leavenworth & Son, Inc., v. C. W. Hunter, No. 26802, recently decided, 116 So. 593, and some of the questions presented are common to each case.

In the present case, the suit was brought in the chancery court of the First district of Coahoma county, and the appellee, Hunter, and others working for him, were enjoined by the complainants from cutting certain timber upon certain lands described in the bill. In the original bill, the complainants asked for an accounting of the number of trees cut and removed, and the number of cords of wood cut and sold to the government. The defendant, Hunter, answered, denying that they were entitled to an accounting. The record is a voluminous one, containing more than one thousand three hundred pages, and the case will not be stated in detail.

The testimony for the complainants tended to show that the timber cut was largely from accretions to lands bordering the Mississippi shore. The complainants contended, and offered proof to show, that the lands cut over amounted to about forty-three acres, and the number of trees cut amounted to, approximately, fifty-three thousand.

It appears that there was, originally, an agreement to cut the willow brush, or small trees, from a strip of land along the river running about two miles, with a width of, approximately, one hundred yards, but the contract was never consummated, and the defendant, in cutting the timber, did not confine himself to such strip, but cut beyond it a considerable distance.

It appears to have been the theory of the complainants that the accretions were from lots 7 and 8, owned by them and situated north of lots 12 and 13. The proof tended to show that lots 12 and 13 of section 21, and large parts of lots 9 and 10, joining those lots on the north, were washed away by the river, and that the bed of the stream, at one time, was on these lands, and that some time about 1894 these lands formed back by accretions, and were restored, and other accretions formed in front of the same, the river receding toward the Arkansas shore. There was much dispute and conflict in the evidence concerning these accretions.

It appears that the complainants, on or about the 1st day of October, 1924, purchased from the state lots 12 and 13, and the chancellor held that the accretions embraced in the controversy over the cutting were a part of these lots, and that the complainants' proof did not sustain the contention of the complainants that the accretions were part of lots 6 and 7. The chancellor further held that the state had title to these lots 12 and 13 prior to October 1, 1924 and that the proof of the complainants were insufficient to establish, with legal certainty, the number of trees cut from these lands subsequent to the 1st of October, 1924, and what part of the timber was cut prior to that time, and, therefore, that it was impossible for the court to render judgment for timber cut subsequently to that time, because the amount...