Mullins Lumber Co. v. Williamson & Brown Land & Lumber Co.

• Decision Date: 06 December 1918
• Docket Number: 1660.
• Citation: 255 F. 645
• Parties: MULLINS LUMBER CO. v. WILLIAMSON & BROWN LAND & LUMBER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

255 F. 645

MULLINS LUMBER CO. v. WILLIAMSON & BROWN LAND & LUMBER CO.

No. 1660.

United States Court of Appeals, Fourth Circuit.

December 6, 1918

W. F Stevenson, of Cheraw, S.C., for plaintiff in error.

F. L Willcox, of Florence, S.C. (Willcox & Willcox, of Florence S.C., on the brief), for defendant in error.

Before KNAPP and WOODS, Circuit Judges, and ROSE, District Judge.

WOODS Circuit Judge.

In this action to recover damages for cutting and removing timber the main issue was the title to the land. Both parties claimed under Wilson Lewis. Plaintiff's chain of title is as follows:

Wilson Lewis to S.W. Morrison, 1,000 acres, more or less, July 27, 1893; Sessions, sheriff, to H. T. Morrison, under tax execution against S.W. Morrison, August 3, 1897; H. T. Morrison to Cape Fear Lumber Company, February 17, 1902; Cape Fear Lumber Company to plaintiff, September 9, 1910. To prove that defendant derived junior claim from the common source, plaintiff introduced conveyances as follows: Wilson Lewis to D. T. Lewis, September 5, 1895; D. T. Lewis to C. H. strickland, May 20, 1910; C. H. Strickland to defendant, August 24, 1910.

At the first trial the chief subject of contest was whether the conveyance of Wilson Lewis to S.W. Morrison embraced the 110 acres in dispute. This court reversed the judgment in favor of the plaintiff for error in the instruction of the trial court on that issue. 246 F. 232. ^[1] On the second trial the jury again found for the plaintiff, and the case is here on assignments of error in the exclusion of testimony, and the instructions of the court as to adverse possession, and the measure of damages

The question whether the conveyance of Wilson Lewis to S.W. Morrison embraced the land in dispute depended to a great extent on the meaning of a plat made by H. T. Morrison at the time of the conveyance: if Morrison meant one line marked on the plat as the boundary, the disputed land was covered; if another line, it was not. Roberts, a surveyor, testified that he was familiar with Morrison's methods of marking his lines and illustrated it by referring to the lines on the plat in issue. He was then asked:

'On that map, without any further explanation, what would you say were the boundary lines?'

Objection to the question and answer was sustained. The witness could not know which of the doubtful lines Morrison meant as the boundary, except from what he had testified of Morrison's method of marking. With the information given by this witness and others, the jury was as well qualified to draw the correct inference on the point as the witness.

We think, therefore, the trial judge exercised a wise discretion in excluding the question as tending to invade the province of the jury on one of the most material issues of fact. Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U.S. 469-476, 24 L.Ed. 256. But, even if the question was improperly excluded, the error could not avail, because it does not appear that the answer would have been favorable to defendant. Shauer v. Alterton, 151 U.S. 607-616, 14 Sup.Ct. 442, 38 L.Ed. 286.

The court was asked to direct a verdict for the defendant on the ground that the statute of South Carolina requires the sheriff to put the purchaser at a tax sale in possession, and the evidence was to the effect that H. T. Morrison had never been put in possession by the sheriff after his purchase. The only evidence on the subject shows that at the time of his purchase H. T. Morrison was already in possession as agent of his wife, S.W. Morrison, the defaulting taxpayer. The law evidently does not contemplate that the purchaser should be ousted, and immediately restored to the possession.

The land in dispute was wild swamp land, incapable of cultivation. The testimony relied on to establish adverse possession proved no continuous use or acts of trespass, but only occasional cutting of timber. This is not sufficient to establish the requisite continuity of possession. Bailey v. Irby, 2 Nott & McC. (S.C.) 343, 10 Am.Dec. 609; Duren v. Sinclair, 22 S.C. 361-366; Love v. Turner, 78 S.C. 513-519, 59 S.E. 529. It is therefore needless to consider the correctness of the charge on the subject of adverse possession, or the alleged error in the exclusion of evidence of Wilson Lewis as to the location of his line after his conveyance to S.W. Morrison.

The District Judge instructed the jury that, if they found the title in the plaintiff, it was--

'entitled to recovery for the highest market value of the timber cut from the time of the cutting in 1915 until the date of this trial.'

The cause arose out of a bona fide dispute as to the title to this land, and the defendant cut the timber in the belief that it had a right to do so. As correctly held by the District Judge, there was no evidence of malicious or reckless invasion of another's property, and therefore no...