Mcmillan v. Wiley
| Decision Date | 24 February 1903 |
| Citation | 33 So. 993,45 Fla. 487 |
| Parties | McMILLAN et al. v. WILEY. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Lake County; Minor S. Jones, Judge.
Bill by Z. K. Wiley against D. H. McMillan and W. C. Jackson. Decree for plaintiff, and defendants appeal. Reversed.
Syllabus by the Court
1. To the extent of conferring jurisdiction on the court of chancery to enjoin the trespasses mentioned in section 1469 Rev. St., by a mere trespasser without color of right or authority, said section is constitutional, and can be enforced; but to the extent of awarding an account for damages for the trespasses mentioned therein, and decreeing their payment, the same is unconstitutional, and cannot be enforced.
2. Independent of section 1469, Rev. St., the court of chancery had no jurisdiction to order an account to be taken of damages for a mere trespass on timbered lands, the same being cognizable at law; and, in so far as said section undertakes to confer such jurisdiction upon the court of chancery, it impairs the right of trial by jury according to the course of the common law and secured by the Constitution.
3. Where the court of chancery, prior to the adoption of our Constitution, had jurisdiction in a case, independently of any statute, for any purpose, it also had authority to decree the taking of an account and the parment of damages in such case; but the court of chancery had no inherent jurisdiction to enjoin a mere trespass on timbered lands, and, though the Legislature may properly confer the power to enjoin in such cases, yet it cannot, along with the delegation of such new power, confer upon the court of chancery jurisdiction to adjudicate damages for such trespasses, and neither can the parties confer such jurisdiction by their silence or consent.
4. A jurisdictional matter will be considered by this court, even though the same may not be questioned by the pleadings, or expressly presented.
Alfred St. Clair-Abrams, for appellants.
The appellee, Z. K. Wiley, filed his bill in chancery in the circuit court of Lake county on the 25th day of January 1898, against D. H. McMillan and W. C. Jackson, partners doing business under the firm name and style of D. H McMillan & Co., who are the appellees in this court, alleging, in substance, therein as follows: That complainant was seised in fee of the W. 1/2 of lots 2 and 3 and all of lot 4, in section 25, township 17 S., R. 27 E., containing 150 acres, more or less, situate in Lake county, the title to which was derived by complainant from a warranty deed from John S. Banks and wife, dated June 18, 1883, which was duly recorded, the said Banks deriving title thereto through an unbroken chain of conveyances from the United States of America; that complainant had been in undisputed and peaceable possession of said land from the date of the execution of said deed by said Banks up to the time of the trespass committed thereon by defendants, exercising such acts of ownership over said land as are usually exercised by owners of unimproved timber lands; that all of said land was timbered land, and that its value consisted principally in the timber thereon, the same being heavily timbered with pine trees of good size and quality, and that the same had never been cut over, the trees remaining virgin forests; that on or about the 1st day of January, 1898, the defendants, who were then, and still were at the date of the filing of the bill, engaged in the business of making turpentine, entered upon said land without the knowledge or consent of complainant, and without authority of law, and proceeded to box and scrape the pine trees standing thereon for the purpose of making turpentine; that complainant had been informed and believed that said defendants had boxed and scraped a great portion of the timber on said land, and had made turpentine therefrom in large quantities, and had removed the said turpentine from the land; that defendants were still engaged in boxing and scraping the trees on said land for the purpose of making and removing still further quantities of turpentine, and that they were injuring the timber on said land, and destroying the value thereof, and exposing the same to destruction by fire; that defendants had greatly injured the value of said land and the timber thereon; that their said trespasses had caused complainant great damage; and that defendants had no title whatever to said land, but were simply trespassers thereon. The prayer of the bill was for an injunction, an account, general relief, and for process.
On the 7th day of March, 1898, the defendants filed their answer to the bill, in which they admitted that their employés had entered upon complainant's land and boxed some of the timber thereon, but averred that the same was done through accident, and not from design to trespass thereon; that the first knowledge defendants had of the trespass upon said land was upon an investigation made after the filing of complainant's bill; that, after learning that they had boxed some of complainant's land by mistake, they immediately communicated with his attorney, offering to pay the full market price then prevailing for such timber used for turpentine purposes; that they still were ready, willing, and anxious to make full reparation to complainant for said timber at the usual and well-established rates, said timber having a well-established market price, and that upon learning that their employés had through mistake entered upon complainant's land they immediately ceased to box or cut any of said timber, and had take, every precaution against fire; that, as complainant had never notified defendants, or made any demand upon them for compensation for the boxing of said timber, as the trespass was unintentional, and committed through accident or mistake, and as defendants stood ready and willing to pay complainant a reasonable and proper price for said timber cut through mistake, they ought not to be subjected to any further costs of suit and the expense of accounting.
On the 4th day of April, 1898, the complainant filed his replication to the answer.
On the 25th day of May, 1898, an order was made by the chancellor below referring the cause to a special master to take the evidence therein, and report same to the court.
On the 10th day of February, 1899, said special master filed his report, together with the testimony taken before him by the complainant and defendants, reciting therein that all of said testimony was taken on the 9th and 10th of February, 1899.
Certain further testimony was afterwards taken in said cause on behalf of the complainant before the chancellor. Almost all of said testimony, however, so...
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