Rector v. Outzen

• Decision Date: 18 May 1908
• Citation: 46 So. 408,93 Miss. 254
• Court: Mississippi Supreme Court
• Parties: ROSEBUD ALCORN RECTOR v. SHIPPEY OUTZEN ET AL

46 So. 408

93 Miss. 254

ROSEBUD ALCORN RECTOR v. SHIPPEY OUTZEN ET AL

Supreme Court of Mississippi

May 18, 1908

October 1908

FROM the circuit court of, first district, Coahoma county, HON SAMUEL C. COOK, Judge.

Mrs Rector, appellant, was plaintiff in the court below; Outzen and others, co-partners, appellees, were defendants there. From a judgment in defendants' favor plaintiff appealed to the supreme court.

Defendants under contract with the board of levee commissioners to construct certain levees on or near the east bank of the Mississippi river to prevent overflow, had employed one Jones to deliver a large quantity of cross-ties to them. They had given permission to Jones to cut timber from the levee board's right of way, and had pointed it out to Jones. Jones, in getting out cross-ties for defendants, cut a goodly number of cypress and ash trees from the adjoining lands of plaintiff. Jones claimed, and on the trial testified, that he cut on plaintiff's land by mistake. It was also shown that, when plaintiff complained to defendants they denied having given permission or authority to Jones to commit the trespass, and offered to pay the actual value of the trees cut. This offer was refused, and plaintiff brought suit for the statutory penalty, $ 15 per tree

Affirmed.

Maynard & Fitzgerald, for appellant.

Plaintiff fully maintained the burden placed upon her by law, in that she proved title and possession to the land to be in her and that the trees were cut on her land without her consent within twelve months before suit brought, that the trees had been cut by authority of Fillbeck, defendant's business manager. The only question, therefore, that could come before the court, would be as to whether or not defendants exercised the proper caution to avoid a trespass upon plaintiff's land.

In Mhoon v. Greenfield, 52 Miss. 438, it is stated "The common law exacted pecuniary redress for trespass upon property whether committed through inadvertence or not, or whether actuated by bad motives or not, as, if a man cuts a tree upon his neighbor's land believing it was his own."

"To withdraw the tortious act from the operation, of the statute it must appear to have been done by mistake or inadvertence. If it is characterized by gross carelessness or negligence in omitting reasonable pains to ascertain the boundaries of the lands

* * * the statute applies." Ibid.

In Keirn, v. Warfield, 60 Miss. 807, the court says: "The true view of the law on this subject is this: The letter of the statute gives the penalty upon the proof of any cutting on the land of another. The courts modified its rigor by holding that the defendant may defeat a recovery by showing that it occurred through accident, inadvertence and mistake; provided reasonable care or caution were taken to avoid a mistake. The burden, therefore, of showing both the unintentional mistake and the exercise of reasonable care to avoid it is on the defendant. What will amount to proper care must necessarily depend upon the facts in the case."

O. G. Johnston, for appellees.

As to all conflicts of evidence, the verdict of the jury is conclusive and their finding will not be molested. After a careful perusal of all the instructions...