Peterson v. Polk , 67 Miss. 163 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

If by the second and third instructions asked by the defendant, and refused by the court, it was intended to affirm that the particular staves seized by the sheriff must be shown to have been made from the timber cut on plaintiff’s land, the action of the court in refusing to grant them was proper. The defendant had mingled the staves claimed by plaintiff with others of like character, and it was impossible to separate them. He cannot impose upon the plaintiff the obligation to identify her own under such circumstances.

If, on the other hand, the purpose of these instructions was to inform the jury that the burden of proof was upon the plaintiff to show that the trees, from which the staves were made, stood on her land, they were properly refused, because the evidence on this point was so conclusive as not to leave the question debatable.

In affirming the judgment we are not to be held as approving the rule announced by the court below for the measurement of damages in those cases in which the defendant has innocently added value to the personal property of the plaintiff by his work and labor. The defendant in this case has no just cause of complaint; but whether the plaintiff is under such circumstances bound to make allowance for such work we do not decide. In Heard v. James, 49 Miss. 247, there is a dictum to this effect; whether it is the law we are not now called on to say.

Judgment affirmed.