Penix v. Pumphrey

• Decision Date: 02 October 1916
• Docket Number: 159
• Citation: 188 S.W. 816,125 Ark. 332
• Parties: PENIX v. PUMPHREY
• Court: Arkansas Supreme Court

188 S.W. 816

125 Ark. 332

PENIX v. PUMPHREY

No. 159

Supreme Court of Arkansas

October 2, 1916

Appeal from Boone Chancery Court; T. H. Humphreys, Chancellor reversed.

STATEMENT BY THE COURT.

The appellants, plaintiffs below, instituted this suit against the appellee to enjoin him from trespassing upon an acre of land which appellants claim to own, and to quiet and confirm appellants' title. They prayed judgment against the appellee for damages on account of alleged trespasses. Appellants alleged that they were the owners of one acre more or less, being all that part of the Northeast quarter of the Northwest quarter of Section 31, Township 21 North, Range 18 West, lying North of the main channel of the Carrolton Hollow Branch, such channel being the Eastern line of said one acre. They alleged that the appellee was the owner of lands adjacent on the South of the main channel of Carrolton Hollow Branch. That appellee had cut and removed the timber from the land described, which timber had not only a marketable value but served as a protection to other land of the appellants by preventing the creek from cutting same away.

The appellee answered, denying that appellants were the owners and in possession of the land described in the complaint alleged that he was in the possession; set up that he was the owner by virtue of certain deeds of conveyance, and denied the alleged acts of trespass; and prayed that appellants' complaint be dismissed and that he have judgment for costs.

The court, after considering the pleadings and exhibits and certain depositions then on file, found that it was necessary, before the respective interests of the parties could be properly adjudicated, that a survey of the land be made, and directed the surveyor of Carroll County to make the survey according to specific directions set forth in the order. The cause was continued for the report of the surveyor and the taking of further proof. Upon the final hearing the court entered a decree in favor of appellants, adjudging that they were the owners of the land described in the complaint and quieting their title; and enjoined appellee from the further cutting of timber or exercising any acts of ownership over the lands; but dismissed the appellant's complaint for damages and adjudged that appellants and appellee each pay one-half of the surveyor's costs; that each party pay his own witness fees and the costs of taking depositions, and that the plaintiffs (appellants) pay all the court costs.

From the judgment dismissing appellants' complaint for damages, and adjudging costs against them in any sum, this appeal has been duly prosecuted.

Judgment reversed and cause remanded.

E. G. Mitchell, for appellant.

The court erred in not awarding damages to plaintiffs, at least $ 100.00, and in adjudging any of the costs against plaintiffs. There was no fraud and no mutual mistake. The court properly found that plaintiffs were the owners of the land and quited their title, but erred in not giving damages and in the awarding of costs. The decree should be modified and damages awarded here and judgment entered for all costs against the appellees. 74 Ark. 336; 85 S.W. 770; 71 Ark. 614; 77 S.W. 54; 4 Hayw. Tenn. 36; 54 Ark. 165.

J. M. Shinn, for appellee.

1. The findings of the chancellor that plaintiffs suffered no damages are sustained by the evidence and this court will not reverse 112 Ark. 341.

2. There was no abuse of discretion in the awarding of costs. 36 Ark. 383; 86 Id. 259, 280; 18 Id. 202-7; 19 Id. 148. Costs are within the discretion of the chancellor. 86 Ark. 608, 614; 11 Cyc. 32, 33, 36-7; 10 Conn. 121; 9 Dana, 261; 4 Stew. & Port. 138.

OPINION

WOOD, J. (after stating the facts).

1. On the issue of damages, the father of appellants testified that he had operated the land in question for about twelve years; that the effect of the cutting of the timber by the appellee was to continually wear the bank off there and destroy the bottom land below; that the piece of land in controversy was protection to the other bottom land belonging to appellants; that appellee had cut timber off of the land in controversy over his protest. He was asked what the timber was worth and replied: "I would not want it cut at all. It was a protection to my place and I would not have had it cut. I would not have had it cut for $ 100.00. I would say that." Another witness, the former owner from whom the appellants deraign title, stated that he would not have had the timber cut, as it was done by the appellee, for less than $ 400.00 or $ 500.00. Another witness stated that, taking into consideration the value of the timber and the damage to the farm, he considered that adequate damages would not be less than $ 100.00.

It was shown that the land in controversy had on it walnut, hickory, ash and oak trees, some six, eight, ten and twelve inches in diameter. The appellants' testimony tended to prove that the land itself in controversy was of no value for agricultural purposes; that the only value it had was the timber and the protection that this timber afforded against the floods to other lower lands of the appellants, keeping the water from washing same away.

There is no testimony to show, specifically, how much the lands of appellants had deteriorated in value by reason of the cutting of this timber; nor was there any testimony to show what was the value, specifically, of the trees that were cut. This evidence does not furnish a basis for estimating the amount of damages that the appellants sustained by reason of appellee's trespass in cutting the timber from the lands of the appellants. While one witness testifies that he would not want it cut at all, because he wanted it as a protection to the place and would not have had it cut for a hundred dollars, he does not testify that the land was damaged to the extent of $ 100.00, and does not testify that the timber cut had that value. Another witness testified that he would not have had the timber cut for less than $ 400.00 or $ 500.00; but the testimony of this witness, likewise, does not show that the land was damaged by reason of the cutting of the timber in that sum, nor does he specify the value of the timber cut.

Now, the measure of appellants' damage was the value of the timber itself which was cut and appropriated by the appellee, and the actual damage to the appellants' land as a consequence of the cutting of this timber. No witness testified what the deterioration in the value of the land was or would be. The fact that witnesses would not have had the timber cut for certain amounts, if the land had belonged to them, furnished no definite and accurate standard for estimating the value of the land after the timber had been removed from it. These two witnesses, it will be observed, had widely divergent views as to what effect the cutting of the timber would have upon the land, so far as the value of their individual preferences were expressed; but it is not what any particular individual would have preferred or desired had he owned the lands, nor the value of such estimated desires or preferences, of which the law takes notice. In measuring damages of the character under consideration, the law requires that the actual damage to the lands should be definitely stated and a value placed upon such damage. It would have been impossible for the court to have fixed an accurate amount of damages from the indefinite manner in which these witnesses expressed the value of what their desires with reference to the land would have been had they been the owners thereof.

The third witness, however, does furnish a definite standard for estimating the damages, and his testimony is nowhere disputed. He says that "taking into consideration the value of the timber and the damage to the farm, he considered that adequate damages would not be less than $ 100.00." His testimony, taken in connection with the other testimony on behalf of the appellants showing that appellee had cut the timber, and that the cutting of the timber would damage the land, furnished a definite basis for ascertaining the amount of appellants' damage. The appellee himself admitted that he cut the timber, and from all this testimony, which the trial court could not arbitrarily ignore, it was shown that appellants had been damaged by reason of the trespasses of the appellee in the sum of at least $...