The Yahoola River And Cane Creek Hydraulic Hose Mining Co. v. Irby

• Decision Date: 31 December 1869
• Citation: 40 Ga. 479
• Parties: THE YAHOOLA RIVER AND CANE CREEK HYDRAULIC HOSE MINING COMPANY, plaintiff in error. v. HENRY IRBY, defendant in error.
• Court: Georgia Supreme Court

40 Ga. 479

THE YAHOOLA RIVER AND CANE CREEK HYDRAULIC HOSE MINING COMPANY, plaintiff in error. v. HENRY IRBY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Trespass quaere, clausum fregit. Damages. Before Judge Knight. Lumpkin Superior Court. September Term, 1869

Irby brought trespass quare clausum fregit against the Yahoola River and Cane Creek Hydraulic Hose Mining Company, averring that it had with force and arms broken and entered land lot 345, in said county, and cut and carried therefrom three hundred trees, of the value of $500 00. The defendant pleaded the general issue and Statute of Limitations.

Plaintiff's attorney, to show title in plaintiff, read in evidence a grant of said lot from the State to Archibald Wal-raven, a deed from William Walraven and Peter J. Walraven to Andrew J. Walraven, in which said feoffers were described as the sole heirs-at-law of Archibald Walraven, and then a deed from Wesley Hudson, as administrator of Andrew J. Walraven, to Irby, in which it was recited that Hudson, as such administrator, had obtained an order of the Court of Ordinary for the sale of said land, had advertised it according to law, and then, at public outcry, knocked it offto Irby, who was the highest bidder, giving time, place and circumstances, *as is usual in deeds by administrators. There deeds were read in evidence, notwithstanding the objections of defendant\'s attorney. He objected to the first because there was no evidence that Archibald Walraven was dead, nor that William and Peter J., were his heirs-at-law. He objected to the other deed, because it was not shown, otherwise than by the recitals in the deed, that the Court of Ordinary granted leave to sell the land.

A witness testified that Dr. VanDyke, as agent of defendant, in 1865 or 1866, cut perhaps one hundred trees off said land, and that they were worth $40 00.

Defendant's counsel read in evidence a deed from Jacob Deek to VanDyke, made in February, 1866, and VanDyke testified that he bought said land from Deek, claimed it bona fide as his own, and ordered timber cut from it on his own account, and not as agent of the defendant. He estimated the damages at $30 00 or $40 00. There was also read in evidence a deed from the sheriff to Deek. And, as to the bona fides of VanDyke's purchase, plaintiff offered a witness who testified that he told VanDyke, before he bought it, that he thought the title which he was buying was bad.

The Court charged the jury that though VanDyke may have been agent of defendant when the trespass was committed, yet if he had bona fide bought the land, and believed it was his, then the jury should not find more than the actual damages proved.

The jury found for the plaintiff $100 00 for damages.

Defendant's attorney moved for a new trial upon the grounds that the Court erred in allowing said deeds to be read in evidence, without more, and because the verdict is strongly and decidedly against the weight of the evidence and excessive, and contrary to said charge of the Court. The new trial was refused, and that is assigned as error.

George D. Rice, by the Reporter, for plaintiff in error, as to the admissibility of the deed from the pretended heirs of the grantee, cited: Carver v. Jackson, 4 Peters R., 83; 1 Gr. Ev., note to sec. 23; Hanks v. Phillips, 39th Ga. R.; *as to the admissibility of the Hudson deed, 7th Ga. R., 559; 4th, 148, 156; Irwin\'s Code, secs. 2518, 2519, 2520; as to sheriff\'s deed, 24th Ga. R., 494. No evidence that defendant committed the trespass: Irwin\'s Code, sec. 2177; 13th John. R., 414; Ang & Ames on Corp., sec. 388; 2d Wend. R., 452; 7th Conn. R., 485; 12 Metcalf R., 482; 2 Railway Cases, 391. Principal not liable for agent\'s trespass: Ang. & A. on Corp., secs. 311, 388; 19th Wend. R., 343; 3 W. & S. R., 103; 4 B. & Aid. R., 590; 2 Wend. R., 452; 7th Conn. R., 485. The company was ignorant of Van-Dyke\'s trespass; Ang. & Ames on Cor., 304; 8th G. & J. R., 248; 29th Miss. R., 68; as to exclusive damages: 10th Ga. R., 37; 28th, 597; 23d, 500.

No appearance for defendant in error.

McCAY, J.

1. We see no reason why the recital in a deed by John and Jacob Doe, that they are the heirs-at-law of William Doe,...