Wood v. Weaver

• Decision Date: 14 June 1917
• Citation: 92 S.E. 1001
• Parties: WOOD et al. v. WEAVER.
• Court: Virginia Supreme Court

(121 Va. 250)

92 S.E. 1001

WOOD et al.

v.WEAVER.

Supreme Court of Appeals of Virginia.

June 14, 1917.

Error to Circuit Court, Lunenburg County.

Case by W. H. Wood and another against R. S. Weaver. From the judgment as reduced, plaintiffs bring error. Affirmed.

Statement of the Case and Facts. This is an action on the case, at law, by the plaintiffs in error (plaintiffs also in the court below) against the defendant in error (defendant also in the court below), hereinafter referred to as plaintiffs and defendant.

The action is for damages to the plaintiffs caused by the cutting and conversion to his own use by defendant of certain trees belonging and conveyed to the plaintiffs by a certain timber deed.

The first count of the declaration is on the case (under statute, section 2901 of the Code of Virginia) for trespass quare clausum fregit to the real estate on which the trees conveyed by said trustees' deed were located. The second count was in trover to recover the value of the trees. There were two remaining counts, both on the case, for conversion of the trees and to recover their value. The trial in the court below was not had on the first, but on the other counts of the declaration.

The defendant's only plea was the general issue. There was a trial by jury, and a verdict for the plaintiffs. The jury thereby found the fact to be that the said cutting was done by the defendant or by his employes under his authority, express or implied.

To sustain this finding of the jury there was testimony for the plaintiffs consisting of circumstantial evidence of stump measurements of trees cut, the proximity of defendant's saw mill, it being on the same tract of land from which the trees were cut; the direct testimony that the employe of defendant having charge of the logging of such mill was seen on the land in question hauling logs therefrom; the statement of such employe on cross-examination tending to confirm this, although on re-examination he denied it; and the character of the defendant's own statement in his testimony on this subject to the effect that he had notified all his employes "to cease forthwith from cutting any timber on the premises in question; that while he did not know positively whether any timber was cut thereon after the 30th day of December, 1914 [the alleged cutting being after that date], he knew that he notified all of his employes not to do any further cutting on said premises, and that if they did so they did so without authority from him, " leaving room for the inference that he testified merely that he did not expressly authorize the cutting before it was done, but otherwise authorized it, as evidenced by his action in permitting the cutting to continue by his employes after the date mentioned without stating that it was done without his knowledge, or giving any facts showing that, with a reasonable supervision of his employes, to the end of seeing that his alleged instructions were obeyed he would not have known, or he could not have been reasonably expected to have known, of the cutting complained of.

In this conflict and status of the evidence, under the rule applicable to the consideration thereof by this court, we must regard the fact to be that the trees were cut by the defendant, that is to say, by his employes under his authority, express or implied.

On the Amount of the Damages.

With respect to the measure of damages the trial court, on motion of the plaintiffs, without objection by the defendant, gave the jury the following instructions:

"The court instructs the jury that if under the foregoing evidence they shall find for the plaintiffs, ¹ then in assessing the damages they shall inquire whether or not the defendant cut and removed the timber from the land in question with or without notice that the plaintiffs were claiming title thereto.

"If the jury shall find that the timber was cut with actual notice that the plaintiffs were claiming title thereto, and upon the defendant's own construction of his rights, then the jury shall assess the damages at the market value of the manufactured timber; but if the timber was cut without notice of the claims of the plaintiffs, the jury shall assess the damages to the plaintiff on the basis of the stumpage value."

There was only one other instruction given. That was given on motion of the defendant, without objection by the plaintiffs, to the effect that the plaintiffs must prove their case by a preponderance of evidence as to every essential fact, including the alleged cutting of trees after the date above mentioned.

The facts as to the trees being cut by the defendant "with actual notice that the plain-tiffs were claiming title thereto and upon the defendant's own construction of his rights, " are as follows:

At the time of the cutting of the trees by defendant proved in the instant case, there was pending in the same court below in which the instant action was afterwards instituted an action by the same plaintiffs against the same defendant as in the instant case, for damages for wrongful cutting and removal of timber from the same tract of land as that on which the trees were cut which are involved in the instant case. That said first action resulted in a judgment in April, 1915, in favor of the said plaintiffs against said defendant. That pending such first action', in order to prevent the said defendant from cutting and removing any trees from said premises under his claim of title thereto, until the case could come to trial, in a suit in equity instituted by said plaintiffs for the purpose, an injunction was duly awarded and served on said defendant in December, 1914, prohibiting him from cutting and removing any such trees.

The trees in the instant case were cut by the defendant after the service of this injunction upon him and in violation of such injunction.

It is true the defendant denied in his testimony that he cut the said trees, and testified that "he immediately upon being served with said injunction notified all his employes to cease forthwith from cutting any timber on the premises in question, " etc., as above quoted from his testimony. But the verdict of the jury is conclusive upon us, as above stated, of the fact being that the defendant did do the cutting in question in violation of the injunction. Nevertheless, in view of the instructions given, quoted above, the jury may have found (and as we shall presently see, manifestly did find) the fact to be that the defendant did such cutting "upon the defendant's own construction of his rights"; that is to say, under a claim of title on his part to the trees cut by him. It is further true that the evidence on the question of whether such claim of title was bona fide is not as explicit as it might be, nor as would be required by the rule that the burden of proof as to this matter is on a trespasser, but for the instruction given as aforesaid. Although the defendant testified as a witness in the case, as aforesaid, he does not say that he cut the trees under his claim of title or show that such claim was bona fide and not induced by gross negligence on his part. But there was other evidence aforesaid from which the jury might have found the fact to be that he did the cutting under such claim of title, and that the latter was bona fide; the trial court by the instruction given asked for by the plaintiff submitted this question to the consideration of the jury in such a way as would make the rule as to burden of proof, above adverted to, operate an injustice upon the defendant if pressed further than it was by the trial court in the instant case, or if pressed further therein by us.

The market value of the trees manufactured into lumber was $720. Their stumpage value, that is to say, their value as standing timber immediately before they were severed from the land, was $276.

The verdict of the jury was" for $720. In view of said quoted instruction, this did not mean a finding by the jury that the trespass of the defendant in the cutting of the trees was a willful trespass, but the contrary, since the trial court instructed them, in effect, to find that very verdict if they believed from the evidence that the trespass was not willful, but under bona fide claim of title. We must therefore regard the fact to be that the trespass of the defendant in question was not willful, but.was committed under a bona fide claim of title.

It is true the trespass in question was committed also in violation of an injunction. But the violation of the injunction was not relied upon by plaintiffs in the court below as evidencing a willful trespass. Indeed by the instruction, asked for by the plaintiffs and given by the trial court, any distinction of the instant case on the question of the willfulness of the trespass, because of the violation of an injunction, was ignored. The trial in the court below, on the plaintiff's own choosing, proceeded in disregard of such violation having any bearing on the measure of damages. Hence we are relieved of considering in the instant case whether such feature of the case would or would not have any bearing on the question of whether the trespass was willful or the contrary; and we must regard the instant case as if it were that of a trespass committed under a bona fide claim of title free from any complication of the violation of an injunction.

On the rendition of said verdict the defendant moved the court below to set it aside and grant him a new trial on the following grounds:

First. Because the verdict was for an excessive amount.

Second. Because the verdict was contrary to the law and the evidence.

Thereupon the trial court put the plaintiffs upon terms to accept $276, the stumpage value of the said trees cut, or the verdict would be set aside and a new trial granted, which judgment the plaintiff accepted under protest. The judgment of the court was entered accordingly for such reduced amount, and that action of such court is assigned by the plaintiffs b...