Cumberland Telephone & Telegraph Co. v. Martin ( 1908 )

Calhoon, J.,

delivered the opinion of the court.

This was an action for the statutory penalty only, for trees-cut. The plaintiff below derived her right to the property from her father in April, 1905. When she came into the -property,, she-found there the telephone wires extending along the side of the road over some of the land. These telephone wires had been in the stone place they now are for seven years, and no-complaint was ever made, before this action, of the company’s-keeping the undergrowth cut out, which interfered with the-wires. The proof in this record shows that there was no wilful or malicious cutting. On the contrary, it shows that the company only cut along its way such small growth as interfered, with its operation. It is perfectly plain in this ease that there was no appreciable damage done, and that the only hope of the-plaintiff below was to get the statutory damages.

This is manifestly a case where there should be strict construction as against this highly penal statute. The wires had. been there for over seven years. When the plaintiff below came-into possession of the property she found them there. It is to-be presumed, on the face of this record, that they were permissively there. If so, the company had the right presumably, to-keep the way clear for the proper use of its instruments of communication. "While we cannot notice the action of the court below in its rulings on the admission and exclusion of testimony, because the attention of the court was not called to it specifically-in the motipn for a new trial, it is still true that no mind can rest on^the proof as to the number of trees, under the definition-of trees given in Clay v. Telegraph-Cable Co., 70 Miss. 406, 11 South. 658, which were cut on the land. The cutting was done, manifestly, with the idea that there was a right to do it, and in no sense could it be called, under the facts, willful or malicious. There was no announcement of the withdrawal of the privilege fo the company to do what it had previously been permissively-doing, and in the present aspect of the case, we do not think the verdict should be permitted to stand. We think there should be-a new trial so that all the facts may appear before the court.

Reversed and remanded.